Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand therefor.
Appears in 1 contract
Samples: Credit Agreement (Aar Corp)
Capital Adequacy. If any If, after the date hereof, Lender shall reasonably determine have determined that any change in, or either (a) the adoption or phase-in of, of any applicable law, rule rule, regulation, or regulation guideline regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank bank, or comparable agency charged with with, the interpretation or administration thereof, or the (b) compliance by any Lender (or any Person controlling such Lender lending office of Lender) with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lenderits or Borrower's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such adoption, change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within fifteen (15) days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers Borrower shall pay to such Lender such additional amount or amounts as will adequately compensate such Lender or such controlling Person for such reduction. Lender will promptly notify Borrower of any event of which it has actual knowledge, so long as occurring after the date thereof, which will entitle Lender to compensation pursuant to this Section 9.18. A certificate of Lender claiming compensation under this Section 9.18 and setting forth the additional amount or amounts to be paid to it hereunder, together with the description of the manner in which such amounts have accrued on or after been calculated, shall be conclusive in the day which is one hundred eighty (180) days prior to the date on which absence of manifest error. In determining such amount, Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Revolving Credit Agreement (Tandy Brands Accessories Inc)
Capital Adequacy. If any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, (a) compliance by such Lender with any applicable law, rule governmental rule, regulation or regulation order regarding capital adequacyadequacy of banks or bank holding companies, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any such authority, central bank or comparable agency, or any regulation, directive or request of any authority of the European Union, has or would have the effect of reducing the rate of return on such Lender's (or any Person controlling such controlling Person's Lender) capital as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which wxxxx xuch Lender (or any Person controlling such Lender or such controlling Person Lender) could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacyadequacy immediately before such compliance and assuming that such Lender's capital was fully utilized prior to such compliance) by an amount deemed by such Lender or such controlling Person to be material, then or (b) any change in any Legal Requirement after the date hereof shall directly or indirectly (i) reduce the amount of any sum received or receivable by such Lender with respect to the Loan, (ii) impose a cost on such Lender that is attributable to the making or maintaining of, or such Lender's commitment to make, its portion of the Loan, or (iii) require such Lender to make any payment on or calculated by reference to the gross amount of any amount received by such Lender under any Credit Document, then, in the case of clause (a) and (b), the Borrower will on demand by the Agent, accompanied by the certificate referred to below, pay to the Agent from time to time, upon demand time as specified by such Lender (which demand Lenders as are so affected such additional amounts as shall be accompanied by a statement sufficient to compensate such Lenders (or any Person controlling such Lenders) for such reduced return, reduction, increased cost or payment together with interest on each such amount from five Banking Days after the date demanded until payment in full thereof at the rate of interest on overdue installments of principal provided in Section 3.1. A certificate of any officer of any such Lender setting forth the amount to be paid to it and the basis for computation thereof hereunder shall, in the absence of manifest error, be conclusive. In determining such demand and a calculation of the amount thereof in reasonable detailamount, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued may use any reasonable averaging and attribution methods to allocate any increased costs in good faith on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand therefora reasonably equitable basis.
Appears in 1 contract
Samples: Credit Agreement (Chemfab Corp)
Capital Adequacy. If If, at any Lender shall reasonably determine that time after the Closing Date, the introduction of or any change in, or the adoption or phase-in of, any applicable law, rule rule, regulation, order, guideline or regulation regarding capital adequacy, request or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender Issuing Bank or any Person controlling such Lender LC Participant with any request 25 or directive regarding capital adequacy by any such Governmental Authority (whether or not having the force of law), shall either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement against letters of credit issued by such Issuing Bank or participated in by such LC Participant, or (ii) impose on such Issuing Bank or such LC Participant any other conditions relating, directly or indirectly, to this Credit Agreement or any Letter of Credit; and the result of any of the foregoing is to increase the cost to such authorityIssuing Bank or such LC Participant of issuing, central bank maintaining or comparable agencyparticipating in any Letter of Credit, has or would have reduce the effect amount of reducing any sum received or receivable by such Issuing Bank or such LC Participant hereunder or reduce the rate of return on such Lender's or such controlling Person's its capital as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) Letters of Credit (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Issuing Bank or such LC Participant pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein), then, upon the delivery at any time within 180 days after the date on which an amount deemed officer of the Issuing Bank or LC Participant, as the case may be, responsible for overseeing this Credit Agreement knows or has reason to know of its right to additional compensation under this Section 3.6, of the certificate referred to below to the Funds Administrator by such Lender Issuing Bank or such controlling Person to LC Participant, as the case may be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which certificate shall be furnished sent by such Issuing Bank or such LC Participant to the Agent), Borrowers shall jointly and severally agree to pay to such Lender Issuing Bank or such LC Participant such additional amount or amounts as will compensate such Lender Issuing Bank or such controlling Person LC Participant for such reductionincreased cost or reduction in the amount receivable or reduction on the rate of return on its capital; provided, so long that if such Issuing Bank or such LC Participant, as the case may be, fails to deliver such amounts have accrued on or demand within such 180-day period, such entity shall only be entitled to additional compensation for any such costs incurred from and after the day which date that is one hundred eighty (180) 180 days prior to the date the Borrowers received such demand. Any Issuing Bank or any LC Participant, upon determining that any additional amounts will be payable pursuant to this Section 3.6, will give prompt written notice thereof to the Funds Administrator, which notice shall include a certificate submitted to the Funds Administrator by the Issuing Bank or such LC Participant (a copy of which certificate shall be sent by such Issuing Bank or such LC Participant to the Agent), setting forth in reasonable detail the basis for the calculation of such additional amount or amounts necessary to compensate such Issuing Bank or such LC Participant. Any certificate required to be delivered pursuant to this Section 3.6 shall, absent demonstrable error, be final and conclusive and binding on which such Lender first made demand thereforBorrowers.
Appears in 1 contract
Capital Adequacy. If In the event that any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, a Regulatory Change has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand ten (10) days after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, together with a certificate (which demand shall be accompanied by a statement conclusive absent manifest error) setting forth the calculations evidencing such requested additional amount, and the law or regulation with respect thereto and certifying that such request is consistent with such Lender’s treatment of other similar customers having similar provisions generally in their agreements with such Lender and that such request is being made on the basis for such demand and of a calculation reasonable allocation of the amount thereof in reasonable detailcosts resulting from such law or regulation, a copy of which shall be furnished to Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. Allocations shall not be deemed reasonable unless made ratably, so long as to the extent practicable, to all affected assets, commitments, activities or other relevant aspects of such amounts have accrued on Lender’s business, whether or after not the day which Lender is one hundred eighty entitled to compensation with respect thereto. Notwithstanding the foregoing, the Borrower shall only be obligated to compensate such Lender for any amount under this subsection arising or occurring during (180a) in the case of each such request for compensation, any time or period commencing not more than ninety (90) days prior to the date on which such Lender first made demand thereforsubmits such request and (b) any other time or period during which, because of the unannounced retroactive application of such law, regulation, interpretation, request or directive, such Lender reasonably could not have known that the resulting reduction in return might arise. Each Lender will notify the Borrower that it is entitled to compensation pursuant to this subsection as promptly as practicable after it determines to request such compensation; provided, however, that the failure to provide such notice shall not restrict the ability of such Lender to be reimbursed under this Section 2.13.
Appears in 1 contract
Capital Adequacy. If after the date hereofRestatement Effective Date, the adoption of any Lender shall reasonably determine that any change inApplicable Law regarding the capital adequacy or liquidity of banks or bank holding companies, or any Change in Law (whether adopted before or after the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, ClosingRestatement Effective Date) or any change in the interpretation or administration thereof by any governmental authorityGovernmental Entity, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authorityGovernmental Entity, central bank or comparable agency, has or would have the effect of reducing the rate of return on such any Lender's ’s capital or such controlling Person's capital requiring the maintenance of additional liquidity (or that of its parent company) as a consequence of such Lender's its obligations hereunder or under any Support Agreement with respect to the Loans, the Revolving Commitment, Swing Line Commitment and the Incremental Facility Commitment, to a level below that which such Lender or such controlling Person it could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's ’s policies with respect to capital adequacyadequacy and liquidity immediately before such adoption, change, Change in Law or compliance) by an amount reasonably deemed by such Lender, in good faith to be material, then, upon the earlier of ten (10) Business Days after demand by such Lender or such controlling Person to be materialthe Maturity Date, then from time to time, upon demand by such Lender (which demand the Borrower shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall promptly pay to such Lender such additional amount amounts as will shall be sufficient to compensate such Lender or such controlling Person for such reductionreduced return, so long as together with interest on such amounts have accrued on or amount from the tenth (10th) Business Day after the day which is one hundred eighty date of demand or the applicable Maturity Date, until payment in full thereof, at the Base Rate Basis. Before giving any notice to the Administrative Agent pursuant to this Section 2.13, such Lender shall designate a different lending office if such designation will avoid the need for giving such notice and will not, in the sole reasonable judgment of such Lender, be otherwise materially disadvantageous to such Lender. Notwithstanding the foregoing, the Borrower shall only be obligated to compensate such Lender for any amount under this subsection arising or occurring at any time (180a) (i) in the case of each such request for compensation, during the period commencing not more than ninety (90) days prior to the date on which such Lender first made demand thereforsubmits such request and (ii) during which, because of the unannounced retroactive application of such law, regulation, interpretation, request or directive, such Lender could not have known that the resulting reduction in return might arise and (b) such Lender is imposing additional amounts as described under this Section 2.13 on other similarly situated borrowers. A certificate of such Lender delivered to the Borrower and the Administrative Agent setting forth the amount to be paid to such Lender by the Borrower as a result of any event referred to in this paragraph and supporting calculations in reasonable detail shall be presumptively correct absent manifest error.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Whole Earth Brands, Inc.)
Capital Adequacy. If any Lender shall reasonably determine determines that any change in, or the adoption or phase-in of, after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any such Lender (or any Person controlling lending office of such Lender Lender) or by the holding company of such Lender, as the case may be, with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing will reduce the rate of return on such Lender's capital or on the capital of such controlling PersonLender's capital holding company, as the case may be, as a consequence of such Lender's obligations hereunder or under any Support Agreement the Loan Documents to a level below that which such Lender or such controlling Person Lender's holding company, as the case may be, could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's policies or such controlling PersonLender's policies holding company's policies, as the case may be, with respect to capital adequacy) by an amount deemed by that such Lender deems to be material, THEN the Borrower shall reimburse such Lender or such controlling Person Lender's holding company, as the case may be, for such reduction. The Borrower shall pay any amount or amounts due to be material, then any Lender under this subsection (b) to such Lender within ten (10) days after receipt by the Borrower of a statement from such Lender setting forth in reasonable detail the amount or amounts due and the basis for the determination from time to timetime of such amount or amounts, upon demand by such Lender (which demand statement shall be accompanied by a statement setting forth the basis for such demand conclusive and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereforbinding absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Harbourton Financial Services L P)
Capital Adequacy. If If, after the date hereof, the adoption ---------------- of any Lender shall reasonably determine that Applicable Law regarding the capital adequacy of banks or bank holding companies, or any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, Applicable Law or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such any Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement with respect to the unused portion of its Commitments to a level below that which such Lender or such controlling Person it could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacyadequacy immediately before such adoption, change or compliance) by an amount deemed by such Lender or such controlling Person to be material, then from time to timethen, upon receipt of written demand by such Lender (which demand Lender, the Borrower shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall promptly pay to such Lender such additional amount amounts as will shall be sufficient to compensate such Lender or such controlling Person for such reductionreduced return, so long as together with interest on such amounts have accrued on or amount from the fourth (4th) day after the day which is receipt of such demand until payment in full thereof at the Prime Rate Basis; provided, however, that no Lender shall be entitled to compensation under this Section 2.12 for any costs incurred more than one hundred eighty (180) days year prior to the date on which that such Lender first made makes written demand thereforto the Borrower for such compensation. A certificate of such Lender setting forth the amount to be paid to such Lender by the Borrower as a result of any event referred to in this paragraph and demonstrating the basis for and calculation of such determination shall, absent manifest error, be conclusive. Each Lender agrees that if any amount or any portion of any amount described in this Section 2.12 is subsequently recovered by such Lender, such Lender shall promptly reimburse the Borrower to the extent of the amount so recovered.
Appears in 1 contract
Capital Adequacy. If after the date hereof, the adoption of any Lender shall reasonably determine that Applicable Law regarding the capital adequacy of banks or bank holding companies, or any change in, in Applicable Law (whether adopted before or after the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, Agreement Date) or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such any Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement with respect to the Loans and the Facility B Commitment to a level below that which such Lender or such controlling Person it could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such any Lender's or such controlling Person's policies with respect to capital adequacyadequacy immediately before such adoption, change or compliance and assuming that such Lender's capital was fully utilized prior to such adoption, change or compliance) by an amount reasonably deemed by such Lender or such controlling Person to be material, then from time to timethen, upon demand by such Lender (which demand Lender, the Borrower shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall promptly pay to such Lender such additional amount amounts as will shall be sufficient to compensate such Lender or such controlling Person for such reductionreduced return, so long as together with interest on such amounts have accrued on or amount from the fourth (4th) day after the day which is one hundred eighty date of demand, until payment in full thereof at the Default Rate. Notwithstanding the foregoing, the Borrower shall only be obligated to compensate such Lender for any amount under this subsection arising or occurring during, in the case of each such request for compensation, (180i) any time or period commencing not more than ninety (90) days prior to the date on which such Lender first made demand thereforsubmits such request, and (ii) any other time or period during which, because of the unannounced retroactive application of such law, regulation, interpretation, request or directive, such Lender could not have known that the resulting reduction in return might arise. A certificate of such Lender setting forth the amount to be paid to such Lender by the Borrower as a result of any event referred to in this paragraph and supporting calculations in reasonable detail shall be presumptively correct.
Appears in 1 contract
Capital Adequacy. If any after the date hereof, the Lender shall reasonably determine have determined that any change in, central bank or the adoption other Governmental Authority properly authorized to do so has adopted or phase-in of, implemented (and has taken all necessary action to legally adopt or implement) any applicable law, rule rule, or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance with which by the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such the Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such the Lender or such controlling Person could have achieved but for such adoption, implementation, change, adoption, phase-in or compliance (taking into consideration such the Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such the Lender or such controlling Person to be material, then from time to time, upon within ten Business Days after demand by such the Lender, the Borrower shall pay to the Lender (or its parent) such additional amount or amounts as will compensate the Lender for such reduction. The Lender will give the Borrower notice of any event occurring after the date of this Agreement which demand will entitle the Lender to compensation pursuant to this Section promptly after it obtains knowledge thereof and determines to request such compensation, and no claim by the Lender for compensation under this Section shall in any case be accompanied by a statement made until such time as the Lender determines that it is legally required to comply with such law, rule, regulations or change thereto giving rise to such claim. A certificate of the Lender claiming compensation under this Section and setting forth the basis for such demand and a calculation of the additional amount thereof in reasonable detail, a copy of which or amounts to be paid to it hereunder shall be furnished to Agent)conclusive, Borrowers shall pay to provided that the determination thereof is made on a reasonable basis. In determining such amount or amounts, the Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, implementation of any applicable law, rule rule, regulation or regulation treaty regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender (or any Person controlling such Lender its Applicable Lending Office) with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on capital of such Lender's Lender or any Person controlling such controlling Person's capital Lender (a "Parent") as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender (or such controlling Person its Parent) could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's its policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within 15 days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Administrative Agent), Borrowers the Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction, so long as . A statement of any Lender claiming compensation under this Section and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error; provided that the determination thereof is made on a reasonable basis; and provided further that the Company shall not be obligated to compensate such amounts have accrued on or after the day which is one hundred eighty (180) Lender for any such reduction occurring more than 180 days prior to the date on which time such Lender first made demand therefornotifies the Company of such adoption, implementation, change or compliance. In determining such amount, such Lender may use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If any If, after the date hereof, Lender shall reasonably determine have determined that any change in, or either (a) the adoption or phase-in of, of any applicable law, rule rule, regulation, or regulation guideline regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank bank, or comparable agency charged with the interpretation or administration thereof, or the (b) compliance by any Lender (or any Person controlling such Lender lending office of Lender) with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lenderits or Borrower's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such adoption, change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within fifteen (15) days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers Borrower shall pay to such Lender such additional amount or amounts as will adequately compensate such Lender or such controlling Person for such reduction. Lender will promptly notify Borrower of any event of which it has actual knowledge, so long as occurring after the date thereof, which will entitle Lender to compensation pursuant to this Section 9.17. A certificate of Lender claiming compensation under this Section 9.17 and setting forth the additional amount or amounts to be paid to it hereunder, together with the description of the manner in which such amounts have accrued on or after been calculated, shall be conclusive in the day which is one hundred eighty (180) days prior to the date on which absence of manifest error. In determining such amount, Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Tandy Brands Accessories Inc)
Capital Adequacy. If Notwithstanding any Lender shall reasonably determine that provision contained herein to the contrary, if, with respect to all or any change in, or the adoption or phase-in ofportion of any Commitment, any applicable law, rule Law is hereafter promulgated or regulation adopted regarding capital adequacy, or any change in the is hereafter made or adopted with respect to any existing Law regarding capital adequacy, or any ruling or interpretation or administration thereof regarding capital adequacy is hereafter made by any governmental authority, Governmental Authority or central bank or other comparable agency charged with the interpretation or administration thereofauthority, or the compliance by any Lender or any Person controlling such Lender Bank complies with any request 25 or directive hereafter made by any Governmental Authority or central bank or other comparable authority regarding capital adequacy (whether or not having the force of law) of any such authorityLaw), central bank or comparable agency, has or would have and the effect of reducing any of the foregoing is to cause a reduction in the rate of return on such Lender's or such controlling PersonBank's capital as a consequence of such LenderBank's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person Bank otherwise could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's its policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person Bank to be materialmaterial (and such Bank may, then from time in determining such amount, utilize such 31 assumptions and allocations of costs and expenses as such Bank shall deem reasonable and may use any reasonable averaging or attribution method), then, such Bank shall notify Borrower and Agent and deliver to time, upon demand by such Lender (which demand shall be accompanied by Borrower and Agent a statement certificate setting forth in reasonable detail (a) the basis Law (or change therein or change in interpretation thereof) giving rise to such request for such demand compensation, and a (b) the calculation of the amount thereof in reasonable detailnecessary to compensate such Bank therefor, a copy which certificate shall constitute prima facie evidence of which the contents thereof. Borrower shall be furnished to Agent), Borrowers shall promptly pay such amount to such Lender Bank; provided, however, that no Bank shall make any request for compensation under this Section 4.5, and Borrower shall not be obligated to compensate any Bank under this Section 4.5 for any reduction on the rate of return on such additional amount as will compensate such Lender or such controlling Person Bank's capital for such reduction, so long as such amounts have accrued on or after any period prior to the 180th day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereforof any notice requesting compensation delivered pursuant to this Section 4.5.
Appears in 1 contract
Capital Adequacy. If any Lender shall Bank shall, at any time, reasonably determine that any change in, or (a) the adoption (i) after the date of this Agreement, of any capital adequacy guidelines or phase-in of(ii) at any time, of any other applicable law, rule government rule, regulation or regulation order regarding capital adequacyadequacy of banks or bank holding companies, or (b) any change in (I) any of the foregoing or (II) the interpretation or administration thereof of any of the foregoing by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (c) compliance by any Lender or any Person controlling such Lender with any policy, guideline, directive or request 25 or directive regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any such authorityGovernmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's the capital as a consequence of such Lender's obligations hereunder or under any Support Agreement Bank to a level below that which such Lender or such controlling Person Bank could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration the policies of such Lender's or such controlling Person's policies Bank with respect to capital adequacyadequacy in effect immediately before such adoption, change or compliance) by an amount and (x) such reduction is as a consequence of the Subsidiary Commitment of, or the making, converting or continuing of any Subsidiary Loans to the Subsidiary Borrower by, such Bank hereunder and (y) such reduction is reasonably deemed by such Lender or such controlling Person Bank to be material, then (1) such Bank shall deliver to the Subsidiary Borrower and the Administrative Agent a certificate stating the reduction in the rate of return such Bank will in the future suffer as a result of its Subsidiary Commitment or the making, converting or continuing any Subsidiary Loans by it hereunder and (2) the Subsidiary Borrower shall, within 30 days after its receipt of such certificate, at its sole option, either (A) pay to the Administrative Agent for the account of such Bank from time to time, upon demand time as specified by such Lender (which demand Bank such amount as shall be accompanied by a statement setting forth the basis sufficient to compensate such Bank for such demand and a calculation reduced return, or (B) replace such Bank in accordance with the provisions of Section 3.10; provided, however, that if the Subsidiary Borrower does not exercise the option specified in clause (B) above within 30 days after receipt of the certificate referred to above, then (1) such Bank shall deliver to the Subsidiary Borrower and the Administrative Agent a second certificate stating the reduction in the rate of return of such Bank and (2) the Subsidiary Borrower shall promptly pay, as specified by such Bank, to the Administrative Agent for the account of such Bank amounts sufficient to compensate such Bank for the reduction in its rate of return. The amount thereof stated in reasonable detail, a copy any certificate delivered to the Subsidiary Borrower pursuant to the provisions of which this Section 3.7 shall be furnished conclusive and binding for all purposes, absent manifest error. In determining any such amount, such Bank may use reasonable averaging and attribution methods. The payments required under this Section 3.7 are in addition to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereforany other payments and indemnities required hereunder.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
Capital Adequacy. If any Lender shall reasonably determine In the event that the Lender, subsequent to the Closing Date, determines in the exercise of its reasonable business judgment that (x) any change in, or the adoption or phase-in of, any applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or (y) any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (z) compliance by any Lender or any Person controlling such the Lender with any new request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother governmental or regulatory authority, has or would have the effect of reducing the rate of return on such the Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such the Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such the Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed material by such the Lender or such controlling Person in the exercise of its reasonable business judgment, the Company agrees to be materialpay to the Lender, then from time to time, upon no later than five (5) days following written demand by such the Lender (which demand shall be accompanied by including a statement setting forth the basis for and explanation of such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agentcharges), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such the Lender or such controlling Person for such reductionreduction in rate of return. In determining such amount or amounts, so long as such amounts have accrued on the Lender may use any reasonable averaging or after the day which is one hundred eighty (180) days prior attribution methods. The protection of this Section 8.5 shall be available to the date Lender regardless of any possible contention of invalidity or inapplicability with respect to the applicable law, regulation or condition. A certificate of the Lender setting forth such amount or amounts as shall be necessary to compensate the Lender with respect to this Section 8.5 and the calculation thereof, when delivered to the Company, shall be conclusive and binding on the Company absent manifest error. In the event the Lender exercises its rights pursuant to this Section 8.5, and subsequent thereto determines that the amounts paid by the Company exceeded the amount which the Lender actually required to compensate the Lender for any reduction in rate of return on its capital, such Lender first made demand therefor.excess shall be returned to the Company by the Lender. 53
Appears in 1 contract
Samples: Second Lien Financing Agreement (Horsehead Holding Corp)
Capital Adequacy. If Without limiting any Lender shall reasonably determine other provision of this Agreement, but without duplication, in the event that any change in, or the adoption or phase-in of, any applicable law, rule treaty, governmental (or regulation quasi-governmental) rule, regulation, guideline or order regarding capital adequacyadequacy not currently in effect or fully applicable as of the Closing Date, or any change therein or in the interpretation or administration application thereof by any governmental authority, central bank or comparable agency charged with after the interpretation or administration thereofClosing Date, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy not currently in effect or fully applicable as of the Closing Date (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any such authority, from a central bank or comparable agencygovernmental authority or body having jurisdiction, has does or would shall have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such changelaw, adoptiontreaty, phase-in rule, regulation, guideline or order, or such change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten (10) Business Days after written notice and demand by such Lender (with copies thereof to the Agent), the Borrower shall from time to time pay to such Lender additional amounts sufficient to compensate such Lender for such reduction (but, in the case of outstanding Loans to which demand the Base Rate Interest Rate Option applies, without duplication of any amounts already recovered by such Lender by reason of an adjustment in the applicable Base Rate). Such Lender shall be accompanied by submit to Agent and Borrower a statement setting certificate as to the amount payable under this Section 2.16, which certificate shall set forth the basis for requesting such demand and a calculation of the amount thereof amounts in reasonable detail, a copy of which detail and shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereforsubmitted in good faith.
Appears in 1 contract
Capital Adequacy. If any In the event that the Lender shall reasonably determine have determined that (a) the introduction after the Closing Date of any change inlaw, or the adoption or phase-in of, any applicable lawtreaty, rule or regulation regarding capital adequacy, or any change therein after the Closing Date, (b) any change after the Closing Date in the interpretation or administration thereof of any law, treaty, rule or regulation by any governmental authority, central bank or comparable agency charged with the interpretation other Governmental Body or administration thereof, or (c) the compliance by any the Lender or any Person controlling such Lender the Issuer with any guideline, request 25 or directive regarding capital adequacy from any central bank or other Governmental Body (whether or not having the force of law) after the Closing Date (for purposes of this Section 3.10, the term “Lender” shall include the Lender and any such authority, central corporation or bank controlling the Lender and the office or comparable agencybranch where the Lender (as so defined) makes or maintains any Libor Rate Loans), has or would have the effect of reducing the rate of return on such the Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such the Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such the Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such the Lender or such controlling Person to be material, then then, from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay upon demand to such the Lender such additional amount or amounts as will compensate such the Lender or such controlling Person for such reduction. In determining such amount or amounts, so long as such amounts the Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.10 shall be available to the Lender regardless of any possible contention of invalidity or inapplicability with respect to the applicable law, regulation or condition. For purposes of this Section 3.10, any rules or directives concerning capital adequacy promulgated by the Bank of International Settlements pursuant to the Xxxx-Xxxxx Act or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) under Basel III, and any rules, regulations, orders and directives adopted, promulgated or implemented in connection with any of the foregoing, regardless of the date adopted, issued, promulgated or implemented, are deemed to have accrued on or been introduced and adopted after the day which is one hundred eighty (180) Closing Date. A certificate of the Lender setting forth such amount or amounts as shall be necessary to compensate the Lender with respect to this Section 3.10 when delivered to the Borrower Representative shall be presumed correct absent manifest error. Notwithstanding the foregoing, the Borrowers shall not be required to compensate the Lender or Issuer pursuant to this Section for any costs incurred more than 180 days prior to the date on which the Lender notifies the Borrower Representative of such Lender first made demand thereforadditional costs or other amounts of the nature described in this Section.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that the applicability of any change inlaw, rule, regulation or guideline adopted pursuant to or arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", or the adoption or phase-in of, after the date hereof of any other applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or any change in the foregoing or in the enforcement, interpretation or administration thereof by any governmental authority, central bank or comparable agency Governmental Authority charged with the enforcement, interpretation or administration thereof, or the compliance by any such Lender or any Person controlling such Lender (a "PARENT") with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyGovernmental Authority, has or would have the effect of reducing the rate of return on capital of such Lender's Lender or such controlling Person's capital its Parent as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which such Lender (or such controlling Person its Parent) could have achieved but for such changeapplicability, adoption, phase-in change or compliance (taking into consideration the policies of such Lender's Lender (or such controlling Person's policies its Parent) with respect to capital adequacy) by an amount reasonably deemed by such Lender or such controlling Person to be material, then from time to time, upon within the second Business Day after demand by such Lender (which demand shall be accompanied by a statement setting forth Lender, the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reductionreduction in the rate of return, so long together with interest on each such amount from the thirtieth day after such demand until payment in full thereof (as well after as before judgement) at the Post-Default Rate. A statement of such Lender, in reasonable detail, claiming compensation under this Section 2.12 and setting forth the additional amount or amounts have accrued to be paid to it hereunder shall be conclusive absent manifest error; PROVIDED that the determination thereof is made on or after a reasonable basis and PROVIDED, FURTHER, that the day which is one hundred eighty (180) Borrowers shall not be obligated to compensate any Lender for any such reduction occurring more than 30 days prior to the date time the Lender first notifies the Borrowers of such adoption, implementation, charge or compliance, and provided further that in administering this Section each Lender shall not single out the Borrowers for different treatment but shall deal with them on which the same basis as the Lender deals with its other customers generally. In determining such amount, such Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that the adoption or taking effect of, or any change in, or the adoption or phase-in of, any applicable law, rule or regulation Law regarding capital adequacy, in each instance, after the Closing Date (or, in the case of a Lender becoming a party to this Agreement following the Closing Date, after the date on which such Lender becomes a party hereto), or any change after the Closing Date in the interpretation interpretation, administration or administration application thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation interpretation, administration or administration application thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 request, guideline or directive regarding capital adequacy (whether or not having the force of law) of any such authorityGovernmental Authority, central bank or comparable agencyagency adopted or otherwise taking effect after the Closing Date (but without duplication of amounts required under Section 2.3(e)(v)), has or would have the effect of reducing the rate of return on such Lender's ’s or such controlling Person's ’s capital as a consequence of such Lender's ’s obligations hereunder or under any Support Agreement or Lender Letter of Credit to a level below that which such Lender or such controlling Person could have achieved but for such adoption, taking effect, change, adoptioninterpretation, phase-in administration, application or compliance (taking into consideration such Lender's ’s or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a written statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Administrative Agent), Borrowers shall promptly pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one two hundred eighty seventy (180270) days prior to the date on which such Lender first made demand therefor.
Appears in 1 contract
Capital Adequacy. If any after the date hereof, the Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation of any applicable law, rule rule, or regulation regarding capital adequacyadequacy (including, without limitation, any law, rule, or regulation implementing the Basle Accord), or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or the compliance by any the Lender (or any Person controlling such Lender its parent) with any request 25 guideline, request, or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority (including, without limitation, any guideline or other requirement implementing the Basle Accord), has or would have the effect of reducing the rate of return on such the Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such the Lender (or such controlling Person its parent) could have achieved but for such adoption, implementation, change, adoption, phase-in or compliance (taking into consideration such the Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such the Lender or such controlling Person to be material, then the Lender will provide the Borrower written notice thereof, and commencing sixty (60) days after such notice is sent such amounts shall begin to accrue and from time to time, upon within ten (10) Business Days after demand by such the Lender, the Borrower shall pay to the Lender (which demand shall be accompanied by a statement or its parent) such additional amount or amounts as will compensate the Lender for such reduction. A certificate of the Lender claiming compensation under this Section and setting forth the basis for such demand and a calculation of the additional amount thereof in reasonable detail, a copy of which or amounts to be paid to it hereunder shall be furnished to Agent)conclusive, Borrowers shall pay to provided that the determination thereof is made on a reasonable basis. In determining such amount or amounts, the Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If In the event that any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, a Regulatory Change has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand ten (10) days after submission by such Lender to the Borrower (with a copy to the Agents) of a written request therefor, together with a certificate (which demand shall be accompanied by a statement conclusive absent manifest error), setting forth the calculations evidencing such requested additional amount, and the law or regulation with respect thereto and certifying that such request is consistent with such Lender's treatment of other similar customers having similar provisions generally in their agreements with such Lender and that such request is being made on the basis for such demand and of a calculation reasonable allocation of the amount thereof in reasonable detailcosts resulting from such law or regulation, a copy of which shall be furnished to Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. Allocations shall not be deemed reasonable unless made ratably, so long as to the extent practicable, to all affected assets, commitments, activities or other relevant aspects of such amounts have accrued on Lender's business, whether or after not the day which Lender is one hundred eighty entitled to compensation with respect thereto. Notwithstanding the foregoing, the Borrower shall only be obligated to compensate such Lender for any amount under this subsection arising or occurring during (180i) in the case of each such request for compensation, any time or period commencing not more than ninety (90) days prior to the date on which such Lender first made demand thereforsubmits such request and (ii) any other time or period during which, because of the unannounced retroactive application of such law, regulation, interpretation, request or directive, such Lender reasonably could not have known that the resulting reduction in return might arise. Each Lender will notify the Borrower that it is entitled to compensation pursuant to this subsection as promptly as practicable after it determines to request such compensation; provided, however, that the failure to provide such notice shall not restrict the ability of such Lender to be reimbursed under this Section 2.11.
Appears in 1 contract
Capital Adequacy. If In the event that any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, a Regulatory Change has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand ten (10) days after submission by such Lender to the Borrowers (with a copy to the Administrative Agent) of a written request therefor, together with a certificate (which demand shall be accompanied by a statement conclusive absent manifest error), setting forth the calculations evidencing such requested additional PAGE 42 amount, and the law or regulation with respect thereto and certifying that such request is consistent with such Lender's treatment of other similar customers having similar provisions generally in their agreements with such Lender and that such request is being made on the basis for such demand and of a calculation reasonable allocation of the amount thereof in reasonable detailcosts resulting from such law or regulation, a copy of which shall be furnished to Agent)the Borrowers shall, Borrowers shall jointly and severally, pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. Allocations shall not be deemed reasonable unless made ratably, so long as to the extent practicable, to all affected assets, commitments, activities or other relevant aspects of such amounts have accrued on Lender's business, whether or after not the day which Lender is one hundred eighty entitled to compensation with respect thereto. Notwithstanding the foregoing, the Borrowers shall only be obligated to compensate such Lender for any amount under this subsection arising or occurring during (180a) in the case of each such request for compensation, any time or period commencing not more than ninety (90) days prior to the date on which such Lender first made demand thereforsubmits such request and (b) any other time or period during which, because of the unannounced retroactive application of such law, regulation, interpretation, request or directive, such Lender reasonably could not have known that the resulting reduction in return might arise. Each Lender will notify the Borrowers that it is entitled to compensation pursuant to this subsection as promptly as practicable after it determines to request such compensation; PROVIDED, HOWEVER, that the failure to provide such notice shall not restrict the ability of such Lender to be reimbursed under this Section 2.13.
Appears in 1 contract
Samples: Loan Agreement (CSC Holdings Inc)
Capital Adequacy. If any Lender shall reasonably determine In the event that any Lender, subsequent to the Closing Date, determines in the exercise of its reasonable business judgment that (x) any change inin applicable Law, rule, regulation or the adoption or phase-in of, any applicable law, rule or regulation guideline regarding capital adequacy, or (y) any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (z) compliance by any Lender or any Person controlling such Lender with any new request 25 or directive regarding capital adequacy (whether or not having the force of lawLaw) of any such authority, central bank or comparable agencyother governmental or regulatory authority, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed material by such Lender or in the exercise of its reasonable business judgment, Borrowers agree to pay to such controlling Person to be materialLender, then from time to time, upon no later than five (5) days following demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior reduction in rate of return; provided that notwithstanding anything in this Agreement to the contrary, (i) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or 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 in each case be deemed to be a "change in applicable Law", regardless of the date enacted, adopted or issued. In determining such amount or amounts, such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.6 shall be available to any Lender regardless of any possible contention of invalidity or inapplicability with respect to the applicable Law, regulation or condition. A certificate of a Lender setting forth such amount or amounts as shall be necessary to compensate such Lender with respect to this Section 3.6 and the calculation thereof, when delivered to the Borrowers, shall be conclusive and binding on Borrowers absent manifest error. Each Lender hereby agrees that the amounts set forth in such certificate shall reflect such Lender's reasonable allocation, in a nondiscriminatory manner among borrowers having obligations to such Lender similar to those of the Borrowers, of the aggregate of such cost increases or yield reductions resulting from any such change in applicable Law. In the event a Lender exercises its rights pursuant to this Section 3.6, and subsequent thereto reasonably determines that the amounts paid by the Borrowers exceeded the amount which such Lender first made demand thereforactually required to compensate such Lender for any reduction in rate of return on its capital, such excess shall be promptly returned to the Borrowers by such Lender.
Appears in 1 contract
Samples: Subordinated Term Loan and Security Agreement (Summit Healthcare REIT, Inc)
Capital Adequacy. If any after the date hereof, the Lender shall reasonably determine have determined that any change in, central bank or the adoption other Governmental Authority properly authorized to do so has adopted or phase-in of, implemented (and has taken all necessary action to legally adopt or implement) any applicable law, rule rule, or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance with which by the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such the Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such the Lender or such controlling Person could have achieved but for such adoption, implementation, change, adoption, phase-in or compliance (taking into consideration such the Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such the Lender or such controlling Person to be material, then from time to time, upon within ten (10) Business Days after demand by such the Lender, the Borrower shall pay to the Lender (or its parent) such additional amount or amounts as will compensate the Lender for such reduction. The Lender will give the Borrower notice of any event occurring after the date of this Agreement which demand will entitle the Lender to compensation pursuant to this Section promptly after it obtains knowledge thereof and determines to request such compensation, and no claim by the Lender for compensation under this Section shall in any case be accompanied by a statement made until such time as the Lender determines that it is legally required to comply with such law, rule, regulations or change thereto giving rise to such claim. A certificate of the Lender claiming compensation under this Section and setting forth the basis for such demand and a calculation of the additional amount thereof in reasonable detail, a copy of which or amounts to be paid to it hereunder shall be furnished to Agent)conclusive, Borrowers shall pay to provided that the determination thereof is made on a reasonable basis, In determining such amount or amounts, the Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine have determined, after the Effective Date, that any change in, or the adoption or phase-a Change in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Law affecting such Lender or any Person controlling lending office of such Lender with any request 25 or directive Lender, if any, regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency), has or would will have the effect of reducing the rate of return on such Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-Change in or compliance Law (taking into consideration such Lender's ’s policies or such controlling Person's the policies of its holding company with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within fifteen (15) days after written demand to Borrowers by such Xxxxxx (made within one hundred eighty (180) days of such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation becoming aware of the amount thereof in reasonable detailreason giving rise to such demand), with a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount or amounts as will shall compensate such Lender or such controlling Person for such reduction. Each Lender shall designate a different lending office if such designation will avoid the need for, so long as or reduce the amount of, such compensation and will not, in the judgment of such Lender, be otherwise disadvantageous to such Lender. A certificate of any Lender claiming compensation under this Section and setting forth the additional amount or amounts have accrued on or after to be paid to it hereunder shall be conclusive in the day which is one hundred eighty (180) days prior to the date on which absence of manifest error. In determining such amount, such Lender first made may use any reasonable averaging and attribution methods. Failure on the part of any Lender to demand thereforcompensation for any reduction in return on capital with respect to any period shall not constitute a waiver of such Lender’s rights to demand compensation for any reduction in return on capital in such period or in any other period. The protection of this Section 3.07 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation or other condition that shall have been imposed.
Appears in 1 contract
Samples: Term Loan Agreement (Nordson Corp)
Capital Adequacy. If any Lender Bank shall reasonably determine that the ---------------- applicability of any change inlaw, rule, regulation or guideline adopted pursuant to or arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", or the adoption or phase-in of, after the date hereof of any other applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or any change in the foregoing or in the enforcement, interpretation or administration thereof by any governmental authority, central bank or comparable agency Governmental Authority charged with the enforcement, interpretation or administration thereof, or the compliance by any Lender such Bank or any Person controlling such Lender Bank (a "Parent") with any request 25 or ------ directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyGovernmental Authority, has or would have the effect of reducing the rate of return on capital of such Lender's Bank or such controlling Person's capital its Parent as a consequence of such LenderBank's obligations hereunder or under any Support Agreement to a level below that which such Lender Bank (or such controlling Person its Parent) could have achieved but for such changeapplicability, adoption, phase-in change or compliance (taking into consideration the policies of such Lender's Bank (or such controlling Person's policies its Parent) with respect to capital adequacy) by an amount reasonably deemed by such Lender or such controlling Person Bank to be material, then from time to time, upon within the second Business Day after demand by such Lender (which demand shall be accompanied by a statement setting forth Bank, the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender Bank such additional amount or amounts as will compensate such Lender or such controlling Person Bank for such reductionreduction in the rate of return, so long together with interest on each such amount from the thirtieth day after such demand until payment in full thereof (as well after as before judgement) at the Post-Default Rate. A statement of such Bank, in reasonable detail, claiming compensation under this Section 3.12 and setting forth the additional amount or amounts have accrued to be paid to it hereunder shall be conclusive absent manifest error; provided that the determination thereof is made on or after a reasonable basis and -------- provided, further, that the day which is one hundred eighty (180) Borrowers shall not be obligated to compensate any -------- ------- Bank for any such reduction occurring more than 30 days prior to the date time the Bank first notifies the Borrowers of such adoption, implementation, charge or compliance, and provided further that in administering this Section each Bank shall not single out the Borrowers for different treatment but shall deal with them on which the same basis as the Bank deals with its other customers generally. In determining such Lender first made demand thereforamount, such Bank may use any reasonable averaging and attribution methods.
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Capital Adequacy. If If, after the Closing Date, any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation of any applicable law, rule or regulation regarding capital adequacyadequacy (including, without limitation, any law, rule or regulation implementing the Basle Accord), or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender (or its parent) with any guideline, request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority (including, without limitation, any guideline or other requirement implementing the Basle Accord), has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such Lender (or such controlling Person its parent) could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten Business Days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Administrative Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or such controlling Person its parent) for such reduction. A certificate of such Lender claiming compensation under this Section 4.6 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error, so long as provided that the determination thereof is made on a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods. Notwithstanding anything to the contrary contained herein, the Borrower shall not be required to make any payment of additional amounts have accrued on or after the day to any Lender pursuant to this Section 4.6 with respect to additional amounts relating to any period of time which is one hundred eighty (180) more than 120 days prior to such Lender's request for such additional amounts, provided that the date on foregoing provisions of this sentence shall not apply to additional amounts attributable to any Regulatory Change which such Lender first made demand therefortakes effect retroactively.
Appears in 1 contract
Capital Adequacy. If If, at any Lender shall reasonably determine that time after the Effective Date, the introduction of or any change in, or the adoption or phase-in of, any applicable law, rule rule, regulation, order, guideline or regulation regarding capital adequacy, request or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender Issuing Bank or any Person controlling such Lender LC Participant with any request 25 or directive regarding capital adequacy by any such Governmental Authority (whether or not having the force of law), shall either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement against letters of credit issued by such Issuing Bank or participated in by such LC Participant, or (ii) impose on such Issuing Bank or such LC Participant any other conditions relating, directly or indirectly, to this Credit Agreement or any Letter of Credit; and the result of any of the foregoing is to increase the cost to such authorityIssuing Bank or such LC Participant of issuing, central bank maintaining or comparable agencyparticipating in any Letter of Credit, has or would have reduce the effect amount of reducing any sum received or receivable by such Issuing Bank or such LC Participant hereunder or reduce the rate of return on such Lender's or such controlling Person's its capital as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) Letters of Credit (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Issuing Bank or such LC Participant pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein), then, upon the delivery at any time within 180 days after the date on which an amount deemed officer of the Issuing Bank or LC Participant, as the case may be, responsible for overseeing this Credit Agreement knows or has reason to know of its right to additional compensation under this Section 3.6, of the certificate referred to below to the Funds Administrator by such Lender Issuing Bank or such controlling Person to LC Participant, as the case may be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which certificate shall be furnished sent by such Issuing Bank or such LC Participant to the Agent), Borrowers shall jointly and severally agree to pay to such Lender Issuing Bank or such LC Participant such additional amount or amounts as will compensate such Lender Issuing Bank or such controlling Person LC Participant for such reductionincreased cost or reduction in the amount receivable or reduction on the rate of return on its capital; provided, so long that if such Issuing Bank or such LC Participant, as the case may be, fails to deliver such amounts have accrued on or demand within such 180-day period, such entity shall only be entitled to additional compensation for any such costs incurred from and after the day which date that is one hundred eighty (180) 180 days prior to the date the Borrowers received such demand. Any Issuing Bank or any LC Participant, upon determining that any additional amounts will be payable pursuant to this Section 3.6, will give prompt written notice thereof to the Funds Administrator, which notice shall include a certificate submitted to the Funds Administrator by the Issuing Bank or such LC Participant (a copy of which certificate shall be sent by such Issuing Bank or such LC Participant to the Agent), setting forth in reasonable detail the basis for the calculation of such additional amount or amounts necessary to compensate such Issuing Bank or such LC Participant. Any certificate required to be delivered pursuant to this Section 3.6 shall, absent demonstrable error, be final and conclusive and binding on which such Lender first made demand thereforBorrowers.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine have determined that the applicability of any change inlaw, rule, regulation or guideline adopted after the date hereof, it being agreed that “adopted after the date hereof” shall include compliance by a Lender or any lending office or holding company of a Lender with any Basle Law whether or not such Basle Law was in effect, applicable or phased in on or prior to or after the date hereof pursuant to or arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled “International Convergence of Capital Measurement and Capital Standards” or pursuant to or arising out of any report, agreement or convention of any international banking group adopted subsequent to such 1988 report (said laws, rules, regulations and guidelines pursuant to or arising out of such 1988 report or any such subsequently adopted report, agreement or convention being sometimes collectively herein referred to as “Basle Laws”), or the adoption or phase-in of, after the date hereof of any applicable other law, rule rule, regulation or regulation guideline regarding capital adequacyadequacy (any such other law, rule, regulation or guideline being sometimes herein referred to as “Other Laws”), or any change in any of the foregoing (after the date hereof in respect of Other Laws; before or after the date hereof in respect of Basle Laws) or in the enforcement or interpretation or administration thereof of any of the foregoing (after the date hereof in respect of Other Laws; before or after the date hereof in respect of Basle Laws) by any governmental authorityGovernment Authority, central bank or comparable agency charged with the enforcement or interpretation or administration thereof, or the compliance by any Lender (or any Person controlling such lending office of any Lender) or any holding company of any Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of such controlling Person's capital Lender’s holding company, if any, as a consequence of such Lender's its Loan Commitments, Loans or any of its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person Lender’s holding company could have achieved but for such changeapplicability, adoption, phase-in change or compliance (taking into consideration such Lender's or ’s policies and the policies of such controlling Person's policies Lender’s holding company with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to timethen, upon demand by such Lender (which demand shall be accompanied or by a statement setting forth the basis for Agent on such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to AgentLender’s behalf), Borrowers Borrower shall pay to such Lender from time to time such additional amount or amounts as will compensate such Lender or such controlling Person Lender’s holding company for any such reductionreduction suffered, so long together with interest on each such amount from the date demanded until payment in full (after as such amounts have accrued on or well as before judgment) thereof at the Base Rate. Each Lender shall endeavor to give Borrower notice of its intention to require compensation under this Section 3.4 within a reasonable time after the day which is one hundred eighty (180) days prior loan officer of such Lender with responsibility for this Agreement becomes aware of its entitlement to such compensation under this Section 3.4, but no failure to give any such notice shall affect or relieve Borrower of any of Borrower’s obligations under this Section 3.4 or under any other provision of this Agreement or any other Loan Document or result in any obligation or liability of Agent or any Lender to Borrower or any other Person. A certificate of a Lender as to the date on which amount required to be paid by Borrower under this Section 3.4 and showing in reasonable detail the basis for the calculation thereof shall, absent manifest error, be final and conclusive (it being understood that in no event shall any Lender be required to disclose in such certificate or otherwise any non-public information). In determining such amount or amounts, a Lender first made demand thereformay use any method of averaging and attribution as it (in its sole and absolute discretion) shall deem applicable.
Appears in 1 contract
Samples: Revolving Credit Agreement (Firstcity Financial Corp)
Capital Adequacy. If any If, after the date of this Agreement, Lender shall reasonably determine have determined in good faith that any change in, or the adoption or phase-in of, after the date of this Agreement of any applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or 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 the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would will have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence in respect of such Lender's its obligations hereunder or under any Support this Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material), then from time to time, upon time to the extent not already reflected in the Prime Rate Borrower shall pay to Lender after demand such additional amount or amounts as will compensate Lender for such reduction. All determinations made in good faith by such Lender (which demand of the additional amount or amounts required to compensate Lender in respect of the foregoing shall be accompanied by a statement setting conclusive in the absence of manifest error. In determining such amount or amounts, Lender may use any reasonable averaging and attribution methods. Lender's claim for reimbursement or compensation under this Section 2.09 shall be in writing and shall set forth the basis for such demand and a in reasonable detail Lender's calculation of the amount thereof in reasonable detailpayable to Lender hereunder. Notwithstanding the foregoing, a copy of which shall be furnished Lender may not seek compensation or reimburesement for amounts attributable to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is period more than one hundred eighty (1801) days year prior to the date on which such Lender first made demand thereforof demand.
Appears in 1 contract
Capital Adequacy. If any In the event that after the date hereof DIP Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, of any applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or any change therein or in the interpretation or administration application thereof by any governmental authority, central bank or comparable agency Governmental Authority charged with the administration or interpretation thereof or administration thereof, or the compliance by any Lender or any Person controlling such DIP Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of from any such authority, central bank or comparable agencyGovernmental Authority including, has without limitation, the issuance of any final rule, regulation or would guideline, does or shall have the effect of reducing reducing, the rate of return on such DIP Lender's or such controlling Personits holding company's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such DIP Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such DIP Lender's or such controlling Person's policies with respect to capital adequacy) by an any amount deemed by such DIP Lender or such controlling Person to be material, then from time to time, upon within fifteen (15) days after demand by such Lender (which demand DIP Lender, Borrower shall be accompanied by a statement setting forth either repay the basis for such demand and a calculation of the amount thereof DIP Loans in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall full without penalty or pay to such DIP Lender such additional amount or amounts as will compensate such DIP Lender or such controlling Person participant for such reduction. For purposes of this Section 1.8(b), so long as such amounts have accrued on the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010 and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith shall be deemed to be an adoption of a law after the day which is one hundred eighty (180) days prior to date hereof regardless of the date on which such Lender first made demand thereforenacted, adopted or issued.
Appears in 1 contract
Samples: Debtor in Possession Loan Agreement
Capital Adequacy. If In the event that any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, a Regulatory Change has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand ten (10) days after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, together with a certificate (which demand shall be accompanied by a statement conclusive absent manifest error) setting forth the calculations evidencing such requested additional amount, and the law or regulation with respect thereto and certifying that such request is consistent with such Lender's treatment of other similar customers having similar provisions generally in their agreements with such Lender and that such request is being made on the basis for such demand and of a calculation reasonable allocation of the amount thereof in reasonable detailcosts resulting from such law or regulation, a copy of which shall be furnished to Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. Allocations shall not be deemed reasonable unless made ratably, so long as to the extent practicable, to all affected assets, commitments, activities or other relevant aspects of such amounts have accrued on Lender's business, whether or after not the day which Lender is one hundred eighty entitled to compensation with respect thereto. Notwithstanding the foregoing, the Borrower shall only be obligated to compensate such Lender for any amount under this subsection arising or occurring during (180a) in the case of each such request for compensation, any time or period commencing not more than ninety (90) days prior to the date on which such Lender first made demand thereforsubmits such request and (b) any other time or period during which, because of the unannounced retroactive application of such law, regulation, interpretation, request or directive, such Lender reasonably could not have known that the resulting reduction in return might arise. Each Lender will notify the Borrower that it is entitled to compensation pursuant to this subsection as promptly as practicable after it determines to request such compensation; provided, however, that the failure to provide such notice shall not restrict the ability of such Lender to be reimbursed under this Section 2.13.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-Change in of, any applicable law, rule or regulation Law regarding capital adequacy, adequacy or any change in the interpretation or administration thereof liquidity by any governmental authorityGovernmental Authority, central bank or comparable agency charged by Applicable Law with the interpretation or administration thereof, or the compliance by any such Lender or any Person controlling such Lender its parent corporation with any request 25 or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank bank, or comparable agency, in each case made subsequent to the date hereof, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's the capital of any Affected Party as a consequence of such Lender's its obligations hereunder or under any Support Agreement arising in connection herewith to a level below that which any such Lender or such controlling Person Affected Party could have achieved but for such introduction, change, adoption, phase-in compliance or compliance change (taking into consideration the policies of such Lender's or such controlling Person's policies Affected Party with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender or such controlling Person Affected Party to be material, then from time to time, upon on the next Monthly Payment Date following the receipt of written demand by such Lender Affected Party, the Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction. If as a result of any event or circumstance similar to those described in Sections 2.11(b) or (which c), any Affected Party is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, then on the next Monthly Payment Date following the receipt of written demand by such Affected Party, the Borrower shall pay to such Affected Party such additional amount or amounts as may be accompanied necessary to reimburse such Affected Party for any amounts paid by it. In determining any amount provided for in this Section 2.11, the Affected Party may use any reasonable averaging and attribution methods. Any Affected Party making a statement setting forth claim or demand under this Section 2.11 shall submit to the Borrower a certificate as to such additional or increased cost or reduction, showing the basis for such claim or demand and a calculation of the amount thereof in reasonable detaildetail including calculation thereof, a copy of which basis must be reasonable and supported, which certificate shall be furnished conclusive absent manifest error. If any material amounts are required to Agentbe paid by the Borrower pursuant to Section 2.11(b) or (c), Borrowers the Borrower shall pay be entitled to, upon written notice (which notice shall be received within five (5) 32 Business Days after the applicable demand or claim), prepay all outstanding Advances held by such Affected Party and terminate the Agreement with respect to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after Affected Party. Each notice delivered by the day which is one hundred eighty (180) days prior Borrower pursuant to the date on which such Lender first made demand thereforthis Section shall be irrevocable.
Appears in 1 contract
Samples: Credit Agreement (UWM Holdings Corp)
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount reasonably deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers Borrower shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand therefor.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine have determined that any change in, or the adoption after the Effective Date or phase-in of, effectiveness after the Effective Date (whether or not previously announced) of any applicable law, rule rule, regulation or regulation treaty regarding capital adequacy, or any change therein after the Effective Date, or any change in the interpretation or administration thereof after the Effective Date by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive after the Effective Date regarding capital adequacy (whether or not having the force of law) of any such authorityGovernmental Authority, central bank or comparable agency, agency has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder hereunder, under the Letters of Credit, the Notes or under any Support Agreement other Obligations held by it to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon satisfaction of the conditions precedent set forth in this Section 7.10, after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to Agent)) as provided below, Borrowers shall pay (subject to Section 11.8 hereof) to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. The certificate of any Lender setting forth such amount or amounts as shall be necessary to compensate it and the basis thereof and reasons therefor shall be delivered as soon as practicable to Borrower and shall be conclusive and binding, so long absent manifest error. Borrower shall pay the amount shown as due on any such amounts have accrued on or certificate within five (5) Business Days after the day which is one hundred eighty (180) days prior to the date on which delivery of such certificate. In preparing such certificate, a Lender first made demand thereformay employ such assumptions and allocations of costs and expenses as it shall in good xxxxx xxxx reasonable and may use any reasonable averaging and attribution method.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender Participant with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, in each case made subsequent to the Closing Date, has or would will have the effect of reducing the rate of return on such Lenderany Participant's or such controlling Personits parent company's capital by an amount such Participant reasonably deems to be material, as a consequence of such Lender's its commitments or obligations hereunder or under any Support Agreement to a level below that which such Lender Participant or such controlling Person its parent company could have achieved but for such change, adoption, phase-in effectiveness, change or compliance (taking into consideration such LenderParticipant's or such controlling Personits parent company's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material), then from time to timethen, upon demand by notice from such Lender Participant, (which demand i) during the Construction Period the Participants shall be accompanied by a statement setting forth fund through Advances and capitalize, and (ii) thereafter, the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers Lessee shall pay to such Lender Participant, such additional amount or amounts as will compensate such Lender Participant and its parent company on or such controlling Person After Tax Basis for such reductionreduction (it being understood that such parent company shall not be reimbursed to the extent its subsidiary Participant is reimbursed by the Lessee in connection with the same or a similar law, so long as rule, regulation, change, request or directive applicable to such amounts have accrued on or Participant). All payments required by this Section 12.8 shall be made by the Lessee within 10 Business Days after demand by the affected Participant. The Lessee shall not be obligated to reimburse any Participant for any reduced return incurred more than 120 days after the day which is one hundred eighty (180) days prior date that such Participant receives actual notice of such reduced return unless such Participant gives notice thereof to the date on Lessee in accordance with this Section 12.8 during such 120 day period. If any Participant becomes entitled to claim any additional amounts pursuant to this Section, it shall provide prompt notice thereof to the Lessee, through the Agent and/or the Agent Lessor, certifying (x) that one of the events described in this clause (a) has occurred and describing in reasonable detail the nature of such event, (y) as to the increased cost or reduced amount resulting from such event and (z) as to the additional amount demanded by such Participant and a reasonably detailed explanation of the calculation thereof. Such a certificate as to any additional amounts payable pursuant to this clause submitted by such Participant, through the Agent and/or the Agent Lessor, to the Lessee shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Participation Agreement and the other Operative Agreements and the payment of the Loans, Lessor Contributions and all other amounts payable hereunder and thereunder. Each Participant shall use its commercially reasonable efforts to reduce or eliminate any claim for compensation pursuant to this Section 12.8, including, without limitation, a change in the 43 50 office of such Participant at which its obligations related to the Operative Agreements are maintained if such Lender first made demand thereforchange will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable judgment of such Participant, be otherwise disadvantageous to it. If any such claim for compensation shall not be eliminated or waived, the Lessee shall have the right to replace the affected Participant with a new financial institution that shall succeed to the rights of such Participant under the Operative Agreements; provided, however, that such Participant shall not be replaced hereunder until it has been paid in full such claim and all other amounts owed to it hereunder.
Appears in 1 contract
Capital Adequacy. If If, after the date of this Agreement, any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy not currently in effect or fully applicable as of the Closing Date (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then then, from time to time, promptly upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Administrative Agent), Borrowers the Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. A certificate of any Lender claiming compensation under this Section 2.20 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error. In determining any such amount, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereformay use any reasonable averaging and attribution methods. Each Lender will promptly notify the Company of any such adoption, change or compliance of which it has knowledge which will entitle such Lender to compensation pursuant to this Section, but the failure to give such notice shall not affect such Lender's right to such compensation provided such Lender gives such notice within 90 days after an officer of such Lender having responsibility for the administration of this Agreement shall have received actual notice of such adoption, change or compliance.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that the adoption of any Applicable Law regarding the capital adequacy of banks or bank holding companies, or any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, Applicable Law or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its commitment or its obligations to fund or maintain Advances hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person it could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacyadequacy immediately before such adoption, change or compliance and assuming that such Lender's capital was fully utilized prior to such adoption, change or compliance) by an amount deemed by such Lender or such controlling Person in good faith to be materialmaterial and such Lender has attempted in good faith, then from time but without success, to timemitigate or eliminate such reduction in its rate of return by assigning its Loans and its portion of the Commitment to an affiliate of such Lender if such assignment would be reasonable under the circumstances as determined by such Lender in good faith and would not be otherwise disadvantageous to such Lender, then, upon the earlier of demand by such Lender (which demand or the Maturity Date, the Borrower shall immediately pay to such Lender, such additional amounts as shall be accompanied sufficient to compensate such Lender for such reduced return, together with interest on such amount from the fourth (4th) day after the date of demand or the Maturity Date, as applicable, until payment in full thereof at the Default Rate. A certificate of such Lender setting forth the amount to be paid to such Lender by the Borrower as a statement setting result of any event referred to in this paragraph shall, absent manifest error, be conclusive, and, at the Borrower's request, such Lender shall set forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand therefordetermination.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s or such controlling Person's ’s capital as a consequence of such Lender's ’s obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's ’s or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand therefor.
Appears in 1 contract
Capital Adequacy. If at any time any Lender shall reasonably determine determines that any change in, or (a) the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in or in the interpretation of, any law, treaty or administration thereof by governmental rule, regulation or order after the Closing Date regarding capital adequacy, (b) compliance with any governmental authoritysuch law, treaty, rule, regulation or order enacted after the Closing Date or (c) compliance with any guideline or request or directive from any central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy other Governmental Authority (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would enacted after the Closing Date shall have the effect of reducing the rate of return on such Lender's ’s (or any corporation controlling such controlling Person's Lender’s) capital as a consequence of such Lender's its obligations hereunder or under or in respect of any Support Agreement Letter of Credit to a level below that which such Lender or such controlling Person corporation could have achieved but for such adoption, change, adoptioncompliance or interpretation, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be materialthen, then upon demand from time to time, upon demand time by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished such demand to the Administrative Agent), Borrowers the Borrower shall pay to the Administrative Agent for the account of such Lender Lender, from time to time as specified by such Lender, additional amount as will amounts sufficient to compensate such Lender or such controlling Person for such reduction, so long . A certificate as to such amounts have accrued on submitted to the Borrower and the Administrative Agent by such Lender shall be conclusive and binding for all purposes absent manifest error. The agreements contained in this Section 2.15 shall survive the termination of this Agreement and the payment of all amounts payable hereunder; provided, however, that the Borrower shall not be required to compensate a Lender pursuant to this Section 2.15 for any such increased cost or after the day which is one hundred eighty (180) reduction incurred more than 180 days prior to the date on which that such Lender first made demand demands, or notifies the Borrower of its intention to demand, compensation therefor; provided, that, if the circumstance giving rise to such increased cost or reduction is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guarantee Agreement (Us Concrete Inc)
Capital Adequacy. If any Lender shall reasonably determine have determined that any change in, or the adoption after the Effective Date or phase-in of, effectiveness after the Effective Date (whether or not previously announced) of any applicable law, rule rule, regulation or regulation treaty regarding capital adequacy, or any change therein after the Effective Date, or any change in the interpretation or administration thereof after the Effective Date by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive after the Effective Date regarding capital adequacy (whether or not having the force of law) of any such authorityGovernmental Authority, central bank or comparable agency, agency has or would have the effect of reducing the rate of return on the capital of such Lender's Lender or any corporation controlling such controlling Person's capital Lender as a consequence of such Lender's its obligations hereunder hereunder, under the Notes or under any Support Agreement other Obligations held by it to a level below that which such Lender or such controlling Person corporation could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person corporation to be material, then from time to time, upon satisfaction of the conditions precedent set forth in this Section, after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to Agent)) as provided below, Borrowers shall pay (subject to Sections 11.7 and 11.15 hereof) to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person corporation for such reduction, so long . The certificate of any Lender setting forth such amount or amounts as shall be necessary to compensate it and the basis thereof and reasons therefor shall be delivered as soon as practicable to Borrower and shall be prima facie evidence of the correctness thereof. Borrower shall pay the amount shown as due on any such amounts have accrued on or certificate within fifteen (15) Business Days after the day which is one hundred eighty (180) days prior to the date on which delivery of such certificate. In preparing such certificate, a Lender first made demand thereformay employ such assumptions and allocations of costs and expenses as it shall in good xxxxx xxxx reasonable and may use any reasonable averaging and attribution method.
Appears in 1 contract
Capital Adequacy. If If, after the Closing Date, any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation (after the Closing Date) of any applicable law, rule or regulation regarding capital adequacyadequacy (including, without limitation, any law, rule or regulation implementing the Basle Accord), or any change (after the Closing Date) therein, or any change (after the Closing Date) in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or compliance (after the compliance Closing Date) by any Lender or any Person controlling such Lender (or its parent) with any guideline, request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority (including, without limitation, any guideline or other requirement implementing the Basle Accord), has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such Lender (or such controlling Person its parent) could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount reasonably deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten Business Days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Administrative Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or such controlling Person its parent) for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which . A certificate of such Lender first claiming compensation under this Section 4.6 and setting forth, in reasonable detail, the additional amount or amounts to be paid to it hereunder and the calculations for arriving at such amount or amounts shall be conclusive absent manifest error, provided that the determination thereof is made demand thereforon a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If any In the event that the Lender shall reasonably determine have determined that (a) the introduction after the Closing Date of any change inlaw, or the adoption or phase-in of, any applicable lawtreaty, rule or regulation regarding capital adequacy, or any change therein after the Closing Date, (b) any change after the Closing Date in the interpretation or administration thereof of any law, treaty, rule or regulation by any governmental authority, central bank or comparable agency charged with the interpretation other Governmental Body or administration thereof, or (c) the compliance by any the Lender or any Person controlling such Lender the Issuer with any guideline, request 25 or directive regarding capital adequacy from any central bank or other Governmental Body (whether or not having the force of law) after the Closing Date (for purposes of this Section 3.9, the term “Lender” shall include the Lender and any such authority, central corporation or bank controlling the Lender and the office or comparable agencybranch where the Lender (as so defined) makes or maintains any Libor Rate Loans), has or would have the effect of reducing the rate of return on such the Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such the Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such the Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person the Lender, in its reasonable judgment, to be material, then then, from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay upon demand to such the Lender such additional amount or amounts as will compensate such the Lender or such controlling Person for such reduction. In determining such amount or amounts, so long as such amounts have accrued on the Lender may use any reasonable averaging or after the day which is one hundred eighty (180) days prior attribution methods. The protection of this Section 3.9 shall be available to the date on which Lender regardless of any possible contention of invalidity or inapplicability with respect to the applicable law, regulation or condition. A certificate of the Lender setting forth such amount or amounts as shall be necessary to compensate the Lender first made demand thereforwith respect to this Section 3.9 when delivered to the Borrower Representative shall be presumed correct absent manifest error.
Appears in 1 contract
Samples: Credit and Security Agreement (Sifco Industries Inc)
Capital Adequacy. If any Lender shall reasonably determine In the event that any Lender, subsequent to the Closing Date, determines in the exercise of its reasonable business judgment that (x) any change in, or the adoption or phase-in of, any applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or (y) any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (z) compliance by any Lender or any Person controlling such Lender with any new request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother governmental or regulatory authority, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed material by such Lender or in the exercise of its reasonable business judgment, the Companies jointly and severally agree to pay to such controlling Person to be materialLender, then from time to time, upon no later than five (5) days following demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reductionreduction in rate of return. In determining such amount or amounts, so long as such amounts have accrued on Lender may use any reasonable averaging or after the day which is one hundred eighty (180) days prior attribution methods. The protection of this Section 8.12 shall be available to any Lender regardless of any possible contention of invalidity or inapplicability with respect to the date applicable law, regulation or condition. A certificate of a Lender setting forth such amount or amounts as shall be necessary to compensate such Lender with respect to this Section 8.12 and the calculation thereof, when delivered to the Borrowing Agent, shall be conclusive and binding on each Company absent manifest error. In the event a Lender exercises its rights pursuant to this Section 8.12, and subsequent thereto determines that the amounts paid by the Companies exceeded the amount which such Lender first made demand thereforactually required to compensate such Lender for any reduction in rate of return on its capital, such excess shall be returned to the Borrowing Agent by such Lender.
Appears in 1 contract
Capital Adequacy. If at any time any Lender shall reasonably determine determines that any change in, or (a) the adoption or phase-in introduction of, any applicable law, rule or regulation regarding capital adequacy, or any change in or in the interpretation of, any law, treaty or administration thereof by governmental rule, regulation or order after the Closing Date regarding capital adequacy or liquidity, (b) compliance with any governmental authoritysuch law, treaty, rule, regulation or order issued after the Closing Date regarding capital adequacy or liquidity or (c) compliance with any guideline or request or directive from any central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy other Governmental Authority (whether or not having the force of law) of any such authority, central bank issued after the Closing Date regarding capital adequacy or comparable agency, has or would liquidity shall have the effect of reducing the rate of return on such Lender's ’s (or any corporation controlling such controlling Person's Lender’s) capital as a consequence of such Lender's its obligations hereunder or under or in respect of any Support Agreement Letter of Credit to a level below that which such Lender or such controlling Person corporation could have achieved but for such adoption, change, adoptioncompliance or interpretation, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be materialthen, then upon demand from time to time, upon demand time by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished such demand to the Administrative Agent), Borrowers Borrower shall pay to the Administrative Agent for the account of such Lender Lender, from time to time as specified by such Lender, additional amount as will amounts sufficient to compensate such Lender or such controlling Person for such reduction, so long . A certificate as to such amounts submitted to Borrower and the Administrative Agent by such Lender shall be prima facie evidence thereof; provided that, notwithstanding anything herein to the contrary (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines and directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or 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 in each case be deemed to have accrued on been enacted, adopted or issued, as the case may be, after the day which is one hundred eighty (180) Closing Date, regardless of the date actually enacted, adopted or issued. Borrower shall not be required to compensate any Lender pursuant to this Section 2.15 for any increased costs incurred more than 180 days prior to the date on which that such Lender first made demand notifies the Administrative Agent and Borrower of the events giving rise to such increased costs and of such Xxxxxx’s intention to claim compensation therefor; provided that if the events giving rise to such increased costs are retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine In the event that any Lender, subsequent to the Closing Date, determines in the exercise of its reasonable business judgment that (x) any change inin applicable Law, rule, regulation or the adoption or phase-in of, any applicable law, rule or regulation guideline regarding capital adequacy, or (y) any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (z) compliance by any Lender or any Person controlling such Lender with any new request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother governmental or regulatory authority, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed material by such Lender or in the exercise of its reasonable business judgment, Borrower agrees to pay to such controlling Person to be materialLender, then from time to time, upon no later than ten (10) days following demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior reduction in rate of return; provided that notwithstanding anything in this Agreement to the contrary, (i) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or 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 in each case be deemed to be a “change in applicable Law”, regardless of the date enacted, adopted or issued. In determining such amount or amounts, such Lender may use any reasonable averaging or attribution methods. The protection of this Section 6.7 shall be available to any Lender regardless of any possible contention of invalidity or inapplicability with respect to the applicable Law, regulation or condition. A certificate of a Lender setting forth such amount or amounts as shall be necessary to compensate such Lender with respect to this Section 6.7 and the calculation thereof, when delivered to the Borrower, shall be conclusive and binding on Borrower absent manifest error. In the event a Lender exercises its rights pursuant to this Section 6.7, and subsequent thereto determines that the amounts paid by the Borrower exceeded the amount which such Lender first made demand thereforactually required to compensate such Lender for any reduction in rate of return on its capital, such excess shall be promptly returned to the Borrower by such Lender.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Summit Healthcare REIT, Inc)
Capital Adequacy. If any Lender Bank shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, thereof or the compliance by any Lender such Bank (or any Person controlling such Lender its lending office) with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling PersonBank's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement credit extended by it hereunder to a level below that which such Lender or such controlling Person Bank could have achieved but for such changelaw, adoptionrule, phase-in regulation, change or compliance (taking into consideration such Lender's or such controlling PersonBank's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person Bank to be material, then from time to time, upon demand time as specified by such Lender (which demand shall be accompanied by a statement setting forth Bank the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person Bank for such reductionreduction in rate of return. A certificate of any Bank claiming compensation under this Section and setting forth the additional amount or amounts to be paid to it hereunder in reasonable detail shall be deemed prima facie correct. In determining such amount, so long as such amounts have accrued on Bank may use any reasonable averaging and attribution methods. A Bank shall not be entitled to compensation under this Section with respect to any change, adoption or after interpretation (a "Change") for any period prior to the day earlier of (i) the date it notifies the Company of the Change or (ii) the date which is one hundred eighty thirty (18030) days prior to the date such Bank obtains actual knowledge of the Change giving rise to the request for compensation if the Company is notified of the Change prior to the lapse of such 30-day period. Each Bank and the Agent shall use reasonable efforts to minimize the cost imposed on the Company in respect of any such increased capital requirement and shall compute the assessment of any such cost related to such increased capital on a nondiscriminatory basis among the Company, on the one hand, and other borrowers to which it applies, on the other hand, and neither such Lender first made Bank nor any corporation controlling such Bank nor the Agent shall be entitled to demand thereforcompensation or be compensated for any increased capital requirement from the Company hereunder in excess of the amount so computed.
Appears in 1 contract
Capital Adequacy. If In the event that any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, any applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender (for purposes of this Section, the term "Lender" shall include any corporation or bank controlling any Person controlling such Lender) and the office or branch where any Lender (as so defined) makes or maintains its pro rata share of the Advances with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such any Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then then, from time to time, upon demand by Borrowers shall promptly pay such Lender upon its demand (which demand shall be accompanied by a statement setting forth the basis for but not more than ten (10) days after Borrowers' receipt of such demand and a calculation the certificate of the amount thereof such Lender in reasonable detail, a copy of which shall be furnished to Agentregard thereto described below), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. In determining such amount or amounts, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereformay use any reasonable averaging or attribution method. The protection of this Section shall be available to each Lender regardless of any possible contention that the applicable law, regulation or condition is invalid or inapplicable. Such Lender shall certify the amount necessary to compensate such Lender with respect to this Section, and the basis for such calculations, to Borrowers, and such certification shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Credit and Security Agreement (Lexington Precision Corp)
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable future law, rule governmental rule, regulation, policy, guideline, directive or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy similar requirement (whether or not having the force of law) imposes, modifies, or deems applicable any capital adequacy, capital maintenance or similar requirement which affects the manner in which any Lender allocates capital resources to its commitments (including any commitments hereunder), and as a result thereof, in the opinion of any such authorityLender, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's with regard to the Loans and/or its obligations hereunder or under any Support Agreement is reduced to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (circumstances taking into consideration account such Lender's or such controlling Person's policies with respect to regarding capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then in such case and upon notice from Agent to Borrower, from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers Borrower shall pay to such Lender such additional amount or amounts as will shall compensate such Lender or such controlling Person for such reductionreduction in its rate of return. Such notice shall contain the statement of such Lender in reasonable detail with regard to any such amount or amounts which shall, so long as in the absence of error, be binding upon Borrower. In determining such amounts amount, such Lender may use any reasonable method of averaging and attribution that it deems applicable. In the event that a Lender, other than Mellon, exercises its rights under this Section 2.9, Borrower shall have accrued on or after the day which is one hundred eighty option to replace such Lender with another financial institution (180acceptable to Agent) days prior who will purchase all (but not part) of such Lender's Revolving Credit Pro Rata Share. Such Lender shall be required to assign and transfer to the date on which financial institution obtained by Borrower, pursuant to an agreement reasonably satisfactory to such Lender first made demand thereforand without representation, warranty or recourse, its respective Revolving Credit Pro Rata Share in exchange for full payment of the outstanding balances thereof, with accrued interest and unpaid fees.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation Regulatory Change regarding capital adequacyadequacy or liquidity after the Effective Date, or any change therein after the Effective Date, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender (or any Person controlling such Lender its Applicable Lending Office) with any request 25 or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on capital of such Lender's Lender or any Person controlling such controlling Person's capital Lender (a “Lender Parent”) as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender (or such controlling Person its Lender Parent) could have achieved but for such change, adoption, phase-in or compliance Regulatory Change (taking into consideration such Lender's or such controlling Person's its policies with respect to capital adequacyadequacy and liquidity) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within 15 days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Administrative Agent), Borrowers the Parent shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction, so long as . A statement of any Lender claiming compensation under this Section and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error; provided that the determination thereof is made on a reasonable basis; and provided further that the Parent shall not be obligated to compensate such amounts have accrued on or after the day which is one hundred eighty (180) Lender for any such reduction occurring more than 180 days prior to the date on which time such Lender first made demand therefornotifies the Parent of such Regulatory Change. In determining such amount, such Lender may use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If Without limiting any other provision of this Agreement, in the event that any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, any applicable law, rule treaty, governmental (or regulation quasi-governmental) rule, regulation, guideline or order regarding capital adequacyadequacy not currently in effect or fully applicable as of the Closing Date, or any change therein or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration application thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy not currently in effect or fully applicable as of the Closing Date (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any such authority, from a central bank or comparable agencyGovernmental Authority or body having jurisdiction, has does or would shall have the effect of reducing the rate of return on the capital of such Lender's Lender or any corporation owning or controlling such controlling Person's capital Lender as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such changelaw, adoptiontreaty, phase-in rule, regulation, guideline or order, or such change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount in good faith deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten (10) days after written notice and demand by such Lender to the Borrower (with copies thereof to the Agent), the Borrower agrees to pay such Lender additional amounts sufficient to compensate such Lender for such reduction. Each certificate as to the amount payable under this Section 5.19 (which demand certificate shall be accompanied by a statement setting set forth the basis for requesting such demand and a calculation of the amount thereof amounts in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior submitted to the date on which such Borrower by any Lender first made demand thereforin good faith, shall, absent manifest error, be final, conclusive and binding for all purposes.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Conso International Corp)
Capital Adequacy. If at any time any Lender shall reasonably determine or Program Support Provider determines that (a) the adoption of or any change in, in or in the adoption or phase-in of, interpretation of any applicable law, rule treaty or governmental rule, regulation or order after the date of this Agreement regarding capital adequacy, (b) compliance with any such law, treaty, rule, regulation, or order or (c) compliance with any change in the interpretation guideline or administration thereof by request or directive from any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender other Governmental Authority or any Person controlling such Lender with any request 25 accounting board or directive regarding capital adequacy authority (whether or not a Governmental Authority) which is responsible for the establishment or interpretation of national or international accounting principles (in each case, whether or not having the force of law) of any such authority, central bank or comparable agency, has or would shall have the effect of reducing the rate of return on such Lender's or Program Support Provider's (or any corporation controlling such controlling PersonLender's or Program Support Provider's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement (other than with respect to Taxes) to a level below that which such Lender Lender, Program Support Provider or such controlling Person corporation could have achieved but for such adoption, change, adoptioncompliance or interpretation, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect then, upon demand from time to capital adequacy) by an amount deemed time by such Lender or Program Support Provider (with a copy of such controlling Person demand to be materialthe Agent and the Board), then the Borrower shall within five (5) Business Days of such demand pay to the Agent for the account of such Lender or Program Support Provider from time to time, upon demand time as specified by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished or Program Support Provider additional amounts sufficient to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person Program Support Provider for such reduction, so long as such ; provided that the Borrower shall not be required to compensate a Lender or Program Support Provider pursuant to this Section 2.10 for any amounts have accrued on or after the day which is one hundred eighty incurred more than six (1806) days months prior to the date on of such demand. A certificate as to such amounts submitted to the Borrower (and the Agent and the Board) by such Lender or Program Support Provider shall be conclusive and binding for all purposes absent manifest error. Each Lender or Program Support Provider shall promptly notify the Borrower, the Agent and the Board of any event of which such Lender first made demand thereforor Program Support Provider has knowledge, occurring after the date hereof, which would entitle such Lender or Program Support Provider to compensation pursuant to this Section 2.10 and will designate a different lending office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender or Program Support Provider, be otherwise disadvantageous to it. For the avoidance of doubt, any interpretation of Accounting Research Bulletin No. 51 by FASB (including Interpretation No. 46 - Consolidation of Variable Interest Entities) shall constitute an adoption, change, request or directive, and any implementation thereof shall be, subject to this Section 2.10.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have Without limiting the effect of reducing the foregoing provisions of this Section 5.01 (but without duplication), the Borrower shall pay directly to any Lender from time to time on request such amounts as such Lender may reasonably determine to be necessary to compensate such Lender or its parent or holding company for any costs which it determines are attributable to the maintenance by such Lender or its parent or holding company (or any Applicable Lending Office), pursuant to any Governmental Requirement following any Regulatory Change, of capital in respect of its Commitment, its Note, its Loans or any interest held by it in any Letter of Credit, such compensation to include, without limitation, an amount equal to any reduction of the rate of return on such Lender's assets or such controlling Person's capital as a consequence equity of such Lender's obligations hereunder Lender or under its parent or holding company (or any Support Agreement Applicable Lending Office) to a level below that which such Lender or such controlling Person its parent or holding company (or any Applicable Lending Office) could have achieved but for such changeGovernmental Requirement. Such Lender will notify the Borrower that it is entitled to compensation pursuant to this Section 5.01(c) as promptly as practicable after it determines to request such compensation. Notwithstanding anything in this Section 5.01(c) to the contrary, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand none of the Lenders shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished permitted to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender pass through or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior charge to the date Borrower costs under this Section 5.01(c) on a discriminatory basis (i.e., which such are not also generally passed through or charged by that Lender first made demand thereforto any other customers of that Lender similarly situated to the Borrower where that customer is subject to documents providing for that pass through or charges). Nothing in this Section 5.01(c) is intended to entitle any Lender to include in any pass through or charge under this Section 5.01(c) any compensation for any increase of costs or reductions in amounts received, receivable or suffered in respect of any commitments to extend credit other than the Loans, the Commitments and the Letters of Credit.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s or such controlling Person's ’s capital as a consequence of such Lender's ’s obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's ’s or such controlling Person's ’s policies with respect to capital adequacy) by an amount reasonably deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers Borrower shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand therefor. In determining such additional amounts, each Lender will act reasonably and in good faith.
Appears in 1 contract
Samples: Credit Agreement (Equinox Group Inc)
Capital Adequacy. If If, after the date hereof, any Lender shall reasonably determine has determined that any change in, or the adoption or phase-in of, effectiveness of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any such Lender or any Person controlling such Lender its parent company with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Personits parent company's capital or assets as a consequence of such Lender's its commitments or obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in effectiveness, change or compliance (taking into consideration the policies of such Lender's or such controlling Person's policies Lender and its parent company with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material), then from time to timethen, upon demand by such Lender (which demand shall be accompanied by a statement setting forth within 10 Business Days after the basis for such demand and a calculation Borrower's receipt of the amount thereof certificate referred to in reasonable detailthe next sentence, a copy of which shall be furnished to Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person and its parent company for such reduction; provided, so long as however, that a Lender will not request any amounts hereunder unless it is generally requesting amounts under comparable provisions from similarly situated borrowers, and provided, further, that no such amounts have accrued on or after the day which is one hundred eighty shall be payable with respect to reduction in rate of return incurred more than three (1803) days prior months before such Lender demands compensation under this Section 3.5. A certificate as to the date on which amount of such reduction in rate of return, the basis therefor and setting forth in reasonable detail the calculations used by the applicable Lender first made demand thereforto arrive at the amount or amounts claimed to be due, shall be submitted to the Borrower and the Agent. Each determination by a Lender of amounts owing under this Section shall be rebuttably presumptive evidence of the matters set forth therein.
Appears in 1 contract
Capital Adequacy. If any Lender the Bank shall reasonably determine have determined that any change in, or the adoption or phase-in of, of any applicable law, rule rule, regulation, guideline, directive or regulation request (whether or not having the force of law) regarding capital adequacyrequirements for banks or bank holding companies, or any change therein or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender the Bank with any request 25 of the foregoing imposes or directive regarding increases a requirement by the Bank to allocate capital adequacy (whether or not having resources to the force of law) of any such authority, central bank or comparable agency, Bank's commitment to make Loans hereunder which has or would have the effect of reducing the rate of return on such Lender's or such controlling Personthe Bank's capital as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person the Bank could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lenderthe Bank's or such controlling Person's then existing policies with respect to capital adequacyadequacy and assuming full utilization of the Bank's capital) but for such adoption, change or compliance by an any amount reasonably deemed by such Lender or such controlling Person the Bank to be material, then the Bank may, at its option and by notice to the Borrower, charge to the Borrower, and Borrower agrees to pay, on demand, to the Bank, as an additional fee hereunder from time to time, such amount or amounts as the Bank, in its good faith judgment, determines to be necessary to compensate the Bank for such reduction in the Bank's return on its capital, upon demand presentation by such Lender (which demand shall be accompanied by the Bank of a statement in the amount and setting forth the basis for Bank's calculation thereof. In determining such demand amount, the Bank may use any reasonable averaging and a calculation attributation method. Notwithstanding any other provision hereof, in the event the Bank shall at any time give notice to the Borrower pursuant to this Section 4.7 implementing additional charges pursuant thereto, the Borrower shall have the right to satisfy in full (within thirty (30) days from the date of such notice but without the amount thereof in reasonable detailimposition of any penalty or the additional charges pursuant to this Section 4.7 above, a copy of which shall be furnished or any prepayment penalty pursuant to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reductionSection 4.2 above, so long as such amounts have accrued on or after full payment is so received by the Bank within such thirty (30) day which period above, and no Default has occurred and is one hundred eighty (180) days prior continuing hereunder, all Obligations due the Bank, including, without limitation, all Loans and all unpaid interest thereon. All borrowing availability of Borrower under this Agreement shall automatically terminate upon the Bank's receipt of such full payment if such availability has not already terminated pursuant to the date on which such Lender first made demand thereforany other provision of this Agreement.
Appears in 1 contract
Capital Adequacy. If If, after the Closing Date, any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation of any applicable law, rule or regulation regarding capital adequacyadequacy (including, without limitation, any law, rule or regulation implementing the Basle Accord), or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender (or its parent) with any guideline, request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority (including, without limitation, any guideline or other requirement implementing the Basle Accord), has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such Lender (or such controlling Person its parent) could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount reasonably deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten Business Days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Administrative Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or such controlling Person its parent) for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which . A certificate of such Lender first claiming compensation under this SECTION 4.6 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error, PROVIDED that the determination thereof is made demand thereforon a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-Change in of, any applicable law, rule or regulation Law regarding capital adequacy, adequacy or any change in the interpretation or administration thereof liquidity by any governmental authorityGovernmental Authority, central bank or comparable agency charged by Applicable Law with the interpretation or administration thereof, or the compliance by any such Lender or any Person controlling such Lender its parent corporation with any request 25 or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank bank, or comparable agency, in each case made subsequent to the date hereof, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's the capital of any Affected Party as a consequence of such Lender's its obligations hereunder or under any Support Agreement arising in connection herewith to a level below that which any such Lender or such controlling Person Affected Party could have achieved but for such introduction, change, adoption, phase-in compliance or compliance change (taking into consideration the policies of such Lender's or such controlling Person's policies Affected Party with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender or such controlling Person Affected Party to be material, then from time to time, upon within [***] following the receipt of written demand by such Lender Affected Party, the Borrower shall pay directly to such Affected Party 752805876 23733713 such additional amount or amounts as calculated by such Affected Party in good faith as will compensate such Affected Party for such reduction.
(which i) If as a result of any event or circumstance similar to those described in Sections 2.11(a), 2.11(b) or 2.11(c), any Affected Party is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, then within [***] following the receipt of written demand by such Affected Party, the Borrower shall pay to such Affected Party such additional amount or amounts as may be accompanied necessary to reimburse such Affected Party for any amounts paid by it.
(ii) In determining any amount provided for in this Section 2.11, the Affected Party may use any reasonable averaging and attribution methods. Any Affected Party making a statement setting forth claim or demand under this Section 2.11 shall submit to the Borrower a certificate as to such additional or increased cost or reduction showing the basis for such claim or demand and a calculation of the amount thereof in reasonable detaildetail including calculation thereof, a copy of which certificate shall be furnished conclusive absent manifest error. If any material amounts are required to Agentbe paid by the Borrower pursuant to Section 2.11(b) or (c) the Borrower shall be entitled to, upon written notice (which notice shall be received within [***] after the applicable demand or claim), Borrowers shall pay terminate the Affected Party’s Commitment, and on the date of receipt by the Administrative Agent of such written notice, such Affected Party’s Commitment will automatically terminate and all Advances held by such Affected Party will be immediately due and payable (without the imposition of any penalty, breakage costs or exit fees, including the Prepayment Premium with respect to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after Advances). Each notice delivered by the day which is one hundred eighty (180) days prior Borrower pursuant to the date on which such Lender first made demand thereforthis Section shall be irrevocable and any termination of any Commitments shall be permanent.
Appears in 1 contract
Samples: Credit Agreement (loanDepot, Inc.)
Capital Adequacy. If any Lender shall reasonably determine determines that any change in, or the adoption or phase-in of, after the 55 date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any such Lender (or any Person controlling lending office of such Lender Lender) or by the holding company of such Lender, as the case may be, with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing will reduce the rate of return on such Lender's capital or on the capital of such controlling PersonLender's capital holding company, as the case may be, as a consequence of such Lender's obligations hereunder or under any Support Agreement the Loan Documents to a level below that which such Lender or such controlling Person Lender's holding company, as the case may be, could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's policies or such controlling PersonLender's policies holding company's policies, as the case may be, with respect to capital adequacy) by an amount deemed by that such Lender deems to be material, THEN the Borrower shall reimburse such Lender or such controlling Person Lender's holding company, as the case may be, for such reduction. The Borrower shall pay any amount or amounts due to be material, then any Lender under this subsection (b) to such Lender within ten (10) days after receipt by the Borrower of a statement from such Lender setting forth in reasonable detail the amount or amounts due and the basis for the determination from time to timetime of such amount or amounts, upon demand by such Lender (which demand statement shall be accompanied by a statement setting forth the basis for such demand conclusive and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereforbinding absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Harbourton Financial Services L P)
Capital Adequacy. If any Lender shall reasonably determine have determined that the applicability of any change inlaw, rule, regulation or guideline adopted after the date hereof (it being agreed that "adopted after the date hereof" shall include compliance by a Lender or any lending office or holding company of a Lender with any Basle Law whether or not such Basle Law was in effect, applicable or phased in on or prior to or after the date hereof) pursuant to or arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards" or pursuant to or arising out of any report, agreement or convention of any international banking group adopted subsequent to such 1988 report (said laws, rules, regulations and guidelines pursuant to or arising out of such 1988 report or any such subsequently adopted report, agreement or convention being sometimes collectively herein referred to as "Basle Laws"), or the adoption or phase-in of, after the date hereof of any applicable other law, rule rule, regulation or regulation guideline regarding capital adequacyadequacy (any such other law, rule, regulation or guideline being sometimes herein referred to as "Other Laws"), or any change in any of the foregoing (after the date hereof in respect of Other Laws; before or after the date hereof in respect of Basle Laws) or in the enforcement or interpretation or administration thereof of any of the foregoing (after the date hereof in respect of Other Laws; before or after the date hereof in respect of Basle Laws) by any governmental authorityGovernment Authority, central bank or comparable agency charged with the enforcement or interpretation or administration thereof, or the compliance by any Lender (or any Person controlling such lending office of any Lender) or any holding company of any Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of such controlling PersonLender's capital holding company, if any, as a consequence of such Lender's its Bosque Loan Commitment, Loans, Existing Loans, its commitments or other obligations under the Existing Agreement or any of its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person Lender's holding company could have achieved but for such changeapplicability, adoption, phase-in change or compliance (taking into consideration such Lender's or policies and the policies of such controlling PersonLender's policies holding company with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to timethen, upon demand by such Lender (which demand shall be accompanied or by a statement setting forth the basis for Agent on such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to AgentLender's behalf), Borrowers the Borrower shall pay to such Lender from time to time such additional amount or amounts as will compensate such Lender or such controlling Person Lender's holding company for any such reductionreduction suffered, so long together with interest on each such amount from the date demanded until payment in full (after as such amounts have accrued on or well as before judgment) thereof at the Base Rate. Each Lender shall endeavor to give the Borrower notice of its intention to require compensation under this Section 3.4 within a reasonable time after the day which is one hundred eighty (180) days prior loan officer of such Lender with responsibility for this Agreement becomes aware of its entitlement to such compensation under this Section 3.4, but no failure to give any such notice shall affect or relieve the Borrower of any of Borrower's obligations under this Section 3.4 or under any other provision of this Agreement or any other Loan Document or result in any obligation or liability of the Agent or any Lender to the date on which Borrower or any other Person. A certificate of a Lender as to the amount required to be paid by Borrower under this Section 3.4 and showing in reasonable detail the basis for the calculation thereof shall, absent manifest error, be final and conclusive (it being understood that in no event shall any Lender be required to disclose in such certificate or otherwise any non-public information). In determining such amount or amounts, a Lender first made demand thereformay use any method of averaging and attribution as it (in its sole and absolute discretion) shall deem applicable.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-Change in of, any applicable law, rule or regulation Law regarding capital adequacy, adequacy or any change in the interpretation or administration thereof liquidity by any governmental authorityGovernmental Authority, central bank or comparable agency charged by Applicable Law with the interpretation or administration thereof, or the compliance by any such Lender or any Person controlling such Lender its parent corporation with any request 25 or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank bank, or comparable agency, in each case made subsequent to the date hereof, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's the capital of any Affected Party as a consequence of such Lender's its obligations hereunder or under any Support Agreement arising in connection herewith to a level below that which any such Lender or such controlling Person Affected Party could have achieved but for such introduction, change, adoption, phase-in compliance or compliance change (taking into consideration the policies of such Lender's or such controlling Person's policies Affected Party with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender or such controlling Person Affected Party to be material, then from time to time, upon within thirty (30) days following the receipt of written demand by such Lender Affected Party, the Borrower shall pay directly to such 742613903 21686243 Affected Party such additional amount or amounts as calculated by such Affected Party in good faith as will compensate such Affected Party for such reduction.
(which i) If as a result of any event or circumstance similar to those described in Sections 2.11(a), 2.11(b) or 2.11(c), any Affected Party is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, then within [***] following the receipt of written demand by such Affected Party, the Borrower shall pay to such Affected Party such additional amount or amounts as may be accompanied necessary to reimburse such Affected Party for any amounts paid by it.
(ii) In determining any amount provided for in this Section 2.11, the Affected Party may use any reasonable averaging and attribution methods. Any Affected Party making a statement setting forth claim or demand under this Section 2.11 shall submit to the Borrower a certificate as to such additional or increased cost or reduction showing the basis for such claim or demand and a calculation of the amount thereof in reasonable detaildetail including calculation thereof, a copy of which certificate shall be furnished conclusive absent manifest error. If any material amounts are required to Agentbe paid by the Borrower pursuant to Section 2.11(b) or (c) the Borrower shall be entitled to, upon written notice (which notice shall be received within [***] after the applicable demand or claim), Borrowers shall pay terminate the Affected Party’s Commitment, and on the date of receipt by the Administrative Agent of such written notice, such Affected Party’s Commitment will automatically terminate and all Advances held by such Affected Party will be immediately due and payable (without the imposition of any penalty, breakage costs or exit fees, including the Prepayment Premium with respect to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after Advances). Each notice delivered by the day which is one hundred eighty (180) days prior Borrower pursuant to the date on which such Lender first made demand thereforthis Section shall be irrevocable and any termination of any Commitments shall be permanent.
Appears in 1 contract
Samples: Credit Agreement (loanDepot, Inc.)
Capital Adequacy. If any Lender shall reasonably determine have determined that any change in, the ---------------- adoption after the Effective Date or effectiveness after the adoption Effective Date (whether or phase-in of, not previously announced) of any applicable law, rule rule, regulation or regulation treaty regarding capital adequacy, or any change therein after the Effective Date, or any change in the interpretation or administration thereof after the Effective Date by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive after the Effective Date regarding capital adequacy (whether or not having the force of law) of any such authorityGovernmental Authority, central bank or comparable agency, agency has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder hereunder, under the Letters of Credit, the Notes or under any Support Agreement other Obligations held by it to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon satisfaction of the conditions precedent set forth in this Section 7.10, after demand by such Lender ------------ (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to Agent)) as provided below, Borrowers shall pay (subject to Section 11.7 hereof) ------------ to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. The certificate of any Lender setting forth such amount or amounts as shall be necessary to compensate it and the basis thereof and reasons therefor shall be delivered as soon as practicable to Borrower and shall be conclusive and binding, so long absent manifest error. Borrower shall pay the amount shown as due on any such amounts have accrued on or certificate within five (5) Business Days after the day which is one hundred eighty (180) days prior to the date on which delivery of such certificate. In preparing such certificate, a Lender first made demand thereformay employ such assumptions and allocations of costs and expenses as it shall in good xxxxx xxxx reasonable and may use any reasonable averaging and attribution method.
Appears in 1 contract
Samples: Loan Agreement (Carrols Corp)
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), the Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand therefor. Notwithstanding any other provision of this Section 2.3(f)(vi) to the contrary, a Lender shall not demand any payment referred to in this subsection if it shall not be the general policy or practice of such Lender to demand similar compensation in similar circumstances with respect to similarly situated borrowers under comparable provisions of like credit agreements.
Appears in 1 contract
Capital Adequacy. If In the event that any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, a Regulatory Change has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand ten (10) days after submission by such Lender to the Borrowers (with a copy to the Administrative Agent) of a written request therefor, together with a certificate (which demand shall be accompanied by a statement conclusive absent manifest error), setting forth the calculations evidencing such requested additional amount, and the law or regulation with respect thereto and certifying that such request is consistent with such Lender's treatment of other similar customers having similar provisions generally in their agreements with such Lender and that such request is being made on the basis for such demand and of a calculation reasonable allocation of the amount thereof in reasonable detailcosts resulting from such law or regulation, a copy of which shall be furnished to Agent)the Borrowers shall, Borrowers shall jointly and severally, pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. Allocations shall not be deemed reasonable unless made ratably, so long as to the extent practicable, to all affected assets, commitments, activities or other relevant aspects of such amounts have accrued on Lender's business, whether or after not the day which Lender is one hundred eighty entitled to compensation with respect thereto. Notwithstanding the foregoing, the Borrowers shall only be obligated to compensate such Lender for any amount under this subsection arising or occurring during (180a) in the case of each such request for compensation, any time or period commencing not more than ninety (90) days prior to the date on which such Lender first made demand thereforsubmits such request and (b) any other time or period during which, because of the unannounced retroactive application of such law, regulation, interpretation, request or directive, such Lender reasonably could not have known that the resulting reduction in return might arise. Each Lender will notify the Borrowers that it is entitled to compensation pursuant to this subsection as promptly as practicable after it determines to request such compensation; PROVIDED, HOWEVER, that the failure to provide such notice shall not restrict the ability of such Lender to be reimbursed under this Section 2.13.
Appears in 1 contract
Samples: Loan Agreement (CSC Holdings Inc)
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s or such controlling Person's ’s capital as a consequence of such Lender's ’s obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's ’s or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), the Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand therefor. Notwithstanding any other provision of this Section 2.3(f)(vi) to the contrary, a Lender shall not demand any payment referred to in this subsection if it shall not be the general policy or practice of such Lender to demand similar compensation in similar circumstances with respect to similarly situated borrowers under comparable provisions of like credit agreements.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine determines that (i) the introduction after the date hereof of any Capital Adequacy Regulation, (ii) any change inafter the date hereof in any Capital Adequacy Regulation, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or (iii) any change in the interpretation or administration thereof of any Capital Adequacy Regulation by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or (iv) compliance after the compliance date hereof by such Lender or any corporation or other entity controlling such Lender with any Capital Adequacy Regulation, affects the amount of capital required or expected to be maintained by such Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance and (taking into consideration such Lender's or such controlling Personcorporation's or other entity's policies with respect to capital adequacyadequacy and such Lender's desired return on capital) by an determines that the amount deemed by of such capital is increased as a consequence of its Commitments, loans, credits or obligations under this Agreement, then:
(a) Administrative Agent shall promptly, after its receipt of a certificate from such Lender or setting forth such controlling Person Lender's determination of such occurrence, give notice thereof to be materialBorrowers and Lenders; and (b) Borrowers shall pay to Administrative Agent, then for the account of such Lender, as an additional fee from time to time, upon demand by ON DEMAND, such amount as such Lender certifies to be the amount reasonably calculated to compensate such Lender for such reduction. A certificate of such Lender claiming entitlement to compensation as set forth above will be conclusive in the absence of manifest error. Such certificate will set forth the nature of the occurrence giving rise to such compensation, the additional amount or amounts to be paid to such Lender (which demand shall be accompanied by a statement setting forth including the basis for Lender's determination of such demand amount), and the method by which such amounts were determined. In determining such amount, such Lender may use any reasonable averaging and attribution method. For purposes of this SECTION 3.8 all references to a calculation of the amount thereof in reasonable detail, a copy of which Lender shall be furnished deemed to Agent), Borrowers shall pay to include any bank holding company or bank parent of such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereforLender.
Appears in 1 contract
Samples: Loan and Security Agreement (IMI of Arlington, Inc.)
Capital Adequacy. If If, after the date hereof, any Lender shall reasonably determine has determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the adoption interpretation or phase-administration thereof in the interpretation or administration of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof compliance by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereofsuch Lender, or the compliance by any Lender or any Person controlling such Lender its parent corporation, with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's parent corporation's) capital or assets as a consequence of such Lender's its commitments or obligations hereunder or under any Support Agreement to a level below that which such Lender Lender, or such controlling Person its parent corporation, could have achieved but for such change, adoption, phase-in effectiveness, change or compliance (taking into consideration such Lender's (or such controlling Person's parent corporation's) policies with respect to capital adequacy) by an amount deemed by ), then, upon written notice from such Lender to the Borrowers, the U.S. Borrowers shall be obligated to pay to any such U.S. Lender, and the Canadian Borrowers shall be obligated to pay to any such Canadian Lender, as applicable, such additional amount or such controlling Person to be material, then from time to time, upon demand by amounts as will compensate such Lender on an after-tax basis (which demand after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction; provided that the Borrowers shall not be required to compensate any Lender pursuant to this Section 4.9 for any increased capital costs incurred more than 180 days prior to the date such Lender notifies the applicable Borrower of the event giving rise to such increased capital cost and of such Lender's intention to claim compensation therefor; provided further, however, that such 180-day limitation shall not apply to any cost that is applicable retroactively so long as the applicable Lender notifies the Borrowers of such cost within 180 days of a responsible officer of such Lender receiving actual knowledge thereof. Such written notice shall be accompanied by a statement certificate setting forth the basis for such demand claim for compensation and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to . Each determination by any such Lender such additional amount as will compensate such Lender or such controlling Person for such reductionof amounts owing under this Section shall, so long as such absent manifest error, be conclusive and binding on the parties hereto. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereforpayable hereunder.
Appears in 1 contract
Capital Adequacy. If after the date hereof, the Lender or any Lender ---------------- Participant shall reasonably determine have determined that any change in, or the adoption or phase-in of, of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such the Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Lender or such Participant with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such the Lender's or such controlling PersonParticipant's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such the Lender or such controlling Person Participant could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such the Lender's or such controlling PersonParticipant's policies with respect to capital adequacy) by an amount deemed by such the Lender or such controlling Person Participant to be material, then from time to time, upon within ten (10) Business Days after demand by the Lender or such Participant, the Borrower shall pay to the Lender (which demand shall be accompanied by a statement or such Participant such additional amount or amounts as will compensate the Lender or such Participant for such reduction. A certificate of the Lender or any Participant claiming compensation under this Section and setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such or amounts to be paid to the Lender or such controlling Person for Participant hereunder shall be conclusive, provided that the determination thereof is made on a reasonable basis. In determining such reductionamount or amounts, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which such Lender first made demand thereforand each Participant may use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If If, after the date hereof, any Lender shall reasonably determine have determined that any change in, or either (i) the adoption or phase-in of, implementation of any applicable law, rule rule, regulation or regulation guideline of general applicability regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (ii) compliance by any such Lender (or any Person controlling lending office of such Lender Lender) with any request 25 or directive of general applicability regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lenderits or Borrower's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten (10) days after demand by such Lender (Lender, which demand demands shall be accompanied by include a statement setting forth the basis for such demand calculation and a calculation of reference to the amount thereof in reasonable detailapplicable law, a copy of which shall be furnished to Agent)rule or regulation, Borrowers Borrower shall pay to such Lender such additional amount of 72 amounts as will adequately compensate such Lender or such controlling Person for such reduction. Such Lender will use good faith and reasonable efforts to designate a different lending office for such Lender's Advances if such designation will avoid the need for, so long as or reduce the amount of, such amounts have accrued on or compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender. Each Lender shall notify the Agent and the Borrower of any event occurring after the day which is one hundred eighty (180) date of this Agreement entitling such Lender to compensation under this Section 0 within 45 days, after such Lender obtains actual knowledge thereof; provided that if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 0 in respect of any costs resulting from such event, only be entitled to payment for costs incurred from and after the date 45 days prior to the date on that such Lender gives such notice. A certificate of such Lender claiming compensation under this Section 0 and setting forth the additional amount of amounts to be paid to it hereunder, together with the description of the manner in which such amounts have been calculated, shall be conclusive in the absence of manifest error. In determining such amount, such Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If The Borrower shall pay directly to each Bank from time to time on request of such Bank such amounts as such Bank may determine to be necessary to compensate such Bank (or, without duplication, the bank holding company of which such Bank is a subsidiary) for any Lender shall reasonably determine costs that it determines are attributable to the maintenance by such Bank (or such bank holding company), pursuant to any change in, or the adoption or phase-in of, any applicable law, rule law or regulation regarding capital adequacy, or any change in the interpretation interpretation, directive or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing at the national level any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A)), of capital in respect of its Commitment, Loans or participation in Letters of Credit (such authoritycompensation to include, central bank or comparable agencywithout limitation, has or would have the effect an amount equal to any reduction of reducing the rate of return on assets or equity of such Lender's Bank (or such controlling Person's capital as a consequence of such Lender's obligations hereunder or under any Support Agreement bank holding company) to a level below that which such Lender Bank (or such controlling Person bank holding company) could have achieved but for such changelaw, adoptionregulation, phase-interpretation, directive or request). Simultaneously with such Bank's request for any such amount, the Bank shall submit to the Borrower a certificate in or compliance (taking into consideration reasonable detail of such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement Bank setting forth the basis for the determination of such demand and a calculation amount payable under this SECTION 5.4. Determinations by each Bank for purposes of the amount thereof in reasonable detail, a copy of which this SECTION 5.4 shall be furnished conclusive in the absence of manifest error. In determining such amounts, the Banks may use any reasonable averaging, attribution and allocation methods. For purposes of this SECTION 5.4, "Regulatory Change" shall mean, with respect to Agent)any Bank, Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or any change after the day which is one hundred eighty date of this Agreement in Federal, state or foreign law or regulations (180including, without limitation, Regulation D) days prior or the adoption or making after such date of any interpretation, directive or request applying to a class of banks (other than those applying solely to banks formally determined by the date applicable regulator to be in a financially troubled condition) including such Bank of or under any Federal, state or foreign law or regulations (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any court or governmental or monetary authority charged with the interpretation or administration thereof. For purposes of this SECTION 5.4, "Basle Accord" shall mean the proposals for risk-based capital framework described by the Basle Committee on which such Lender first made demand thereforBanking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine In the event that any change in, Regulatory Change reduces or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would shall have the effect of reducing the rate of return on such Lender's or such controlling Personany Bank's capital or the capital of its parent corporation (by an amount such Bank deems material) as a consequence of such Lender's obligations hereunder or under any Support Agreement its Commitments and/or its Loans to a level below that which such Lender Bank or such controlling Person its parent corporation could have achieved but for such change, adoption, phase-in or compliance Regulatory Change (taking into consideration account such Lender's or such controlling PersonBank's policies and the policies of its parent corporation with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material), then the Borrower shall, within 15 days after written demand from time to time, upon demand by such Lender Bank (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Agent), Borrowers shall pay to such Lender such Bank additional amount as will amounts sufficient to compensate such Lender Bank or such controlling Person its parent corporation for such reduction. Each Bank will promptly notify the Borrower and the Agent of any event of which it has knowledge, so long as such amounts have accrued on or occurring after the day date hereof, which is one hundred eighty (180) will entitle such Bank to compensation pursuant to this Section and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If any Bank fails to give such notice within 45 days after it obtains knowledge of such a Regulatory Change, such Bank shall, with respect to compensation payable pursuant to this Section, only be entitled to payment under this Section for reductions suffered from and after the date 45 days prior to the date that such Bank does give such notice. A certificate of any Bank claiming compensation under this Section, setting forth the additional amount or amounts to be paid to it hereunder and stating in reasonable detail the basis for the charge and the method of computation, shall be conclusive in the absence of manifest error. In determining such amount, each Bank may use any reasonable averaging and attribution methods. Failure on which such Lender first made the part of any Bank to demand thereforcompensation for any reductions with respect to any period shall not constitute a waiver of that Bank's rights to demand compensation for any increased costs or reduction in amounts received or receivable in any subsequent period (subject to the limitation contained in the third preceding sentence).
Appears in 1 contract
Capital Adequacy. If any Lender shall have reasonably determine determined that any change in, or the adoption (after the Agreement Date) of any Applicable Law regarding the capital adequacy of banks or phase-in of, any applicable law, rule or regulation regarding capital adequacybank holding companies, or any change in Applicable Law after the Agreement Date or any change after the Agreement Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 directive issued or directive adopted after the date hereof regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, in each case first promulgated after the Agreement Date, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person it could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacyadequacy immediately before such adoption, change or compliance and assuming that such Lender's capital was fully utilized prior to such adoption, change or compliance) by an amount reasonably deemed by such Lender or such controlling Person to be material, then such Lender shall promptly notify the Borrower of such adoption, compliance, or change. Within sixty (60) days of written notice by such Lender, the Borrower shall, in its discretion, (i) provide a replacement lender or lenders for such Lender, which replacement lender or lenders will be subject to the approval of the Administrative Agent, which, so long as no Default or Event of Default shall then exist, shall not be unreasonably withheld, and the Administrative Agent, such Lender and the Borrower shall take all necessary actions to transfer the rights, duties and obligations of such Lender to such replacement lender or lenders within such sixty (60) day period (including, without limitation, the payment in full of all Obligations hereunder due to the Lender being replaced), or (ii) thereafter, from time to time, time upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers shall promptly pay to such Lender such additional amount amounts as will shall be sufficient to compensate such Lender or such controlling Person for such reductionreduced return, so long as together with interest on such amounts have accrued on or amount from the fourth (4th) day after the day which is one hundred eighty date of demand until payment in full thereof at the Base Rate plus the Applicable Margin in effect for Base Rate Advances under the Revolving Commitment; provided, however, that notwithstanding the foregoing, the Borrower shall have no obligation to provide any such replacement bank or make any such payment in the event that the first such demand in respect of any such regulatory change, request or directive regarding capital adequacy was sent by such Lender more than ninety (18090) days prior after it became aware of the 55 62 applicability of such regulatory change, request or directive to the date on which Loans. Such Lender will designate a different lending office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender, be otherwise materially disadvantageous to such Lender. A certificate of such Lender first made demand thereforsetting forth the amount to be paid to such Lender by the Borrower as a result of any event referred to in this paragraph and supporting calculations in reasonable detail shall be conclusive, absent manifest error.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine In the event that any Lender, subsequent to the Closing Date, determines in the exercise of its reasonable business judgment that (x) any change inin applicable Law, rule, regulation or the adoption or phase-in of, any applicable law, rule or regulation guideline regarding capital adequacy, or (y) any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (z) compliance by any Lender or any Person controlling such Lender with any new request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother governmental or regulatory authority, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed material by such Lender or in the exercise of its reasonable business judgment, Borrowers agree to pay to such controlling Person to be materialLender, then from time to time, upon no later than five (5) days following demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior reduction in rate of return; provided that notwithstanding anything in this Agreement to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or 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 in each case be deemed to be a "change in applicable Law", regardless of the date enacted, adopted or issued. In determining such amount or amounts, such Lender may use any reasonable averaging or attribution methods. The protection of this Section 5.9 shall be available to any Lender regardless of any possible contention of invalidity or inapplicability with respect to the applicable Law, regulation or condition. A certificate of a Lender setting forth such amount or amounts as shall be necessary to compensate such Lender with respect to this Section 5.9 and the calculation thereof, when delivered to Borrowers, shall be conclusive and binding on each Borrower absent manifest error. In the event a Lender exercises its rights pursuant to this Section 5.9, and subsequent thereto determines that the amounts paid by Borrowers exceeded the amount which such Lender first made actually required to compensate such Lender for any reduction in rate of return on its capital, such excess shall be returned to Borrowers by such Lender. Failure or delay on the part of any Lender to demand thereforcompensation pursuant to this Section 5.9 shall not constitute a waiver of such Lender's right to demand such compensation.
Appears in 1 contract
Samples: Credit and Security Agreement (Greenbrook TMS Inc.)
Capital Adequacy. If If, after the Effective Date, any Lender ---------------- shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation of any applicable law, rule or regulation regarding capital adequacyadequacy (including, without limitation, any law, rule or regulation implementing the Basle Accord), or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender (or its parent) with any guideline, request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority (including, without limitation, any guideline or other requirement implementing the Basle Accord), has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such Lender (or such controlling Person its parent) could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount reasonably deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten Business Days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Administrative Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or such controlling Person its parent) for such reduction. A certificate of such Lender claiming compensation under this Section 4.6 and setting forth the additional amount or amounts to be paid to it ----------- hereunder shall be conclusive absent manifest error, so long as provided that the determination thereof is made on a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods. Notwithstanding anything to the contrary contained herein, the Borrower shall not be required to make any payment of additional amounts have accrued on or after the day to any Lender pursuant to this Section 4.6 with respect to additional amounts relating to any ----------- period of time which is one hundred eighty (180) more than 120 days prior to such Lender's request for such additional amounts, provided that the date on foregoing provisions of this sentence shall not apply to additional amounts attributable to any Regulatory Change which such Lender first made demand therefortakes effect retroactively.
Appears in 1 contract
Samples: Credit Agreement (Ipcs Inc)
Capital Adequacy. If any Lender shall reasonably determine have determined that any change in, or the adoption after the Effective Date or phase-in of, effectiveness after the Effective Date (whether or not previously announced) of any applicable law, rule rule, regulation or regulation treaty regarding capital adequacy, or any change therein after the Effective Date, or any change in the interpretation or administration thereof after the Effective Date by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive after the Effective Date regarding capital adequacy (whether or not having the force of law) of any such authorityGovernmental Authority, central bank or comparable agency, agency has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder hereunder, under the Letters of Credit, the Notes or under any Support Agreement other Obligations held by it to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon satisfaction of the conditions precedent set forth in this Section, after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to Agent)) as provided below, Borrowers Borrower shall pay (subject to SECTION 11.7 hereof) to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction, so long . The certificate of any Lender setting forth such amount or amounts as shall be necessary to compensate it and the basis thereof and reasons therefor shall be delivered as soon as practicable to Borrower and shall create a rebuttable presumption as to the accuracy thereof. Borrower shall pay the amount shown as due on any such amounts have accrued on or certificate within five (5) Business Days after the day which is one hundred eighty (180) days prior to the date on which delivery of such certificate. In preparing such certificate, a Lender first made demand thereformay employ such assumptions and allocations of costs and expenses as it shall in good faith deem reasonable and may use any reasonable averaging and attribxxxxx xxxxod.
Appears in 1 contract
Capital Adequacy. If Without limiting any other provision of this Master Agreement, in the event that any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, any applicable law, rule treaty, governmental (or regulation quasi- governmental) rule, regulation, guideline or order regarding capital adequacyadequacy not currently in effect or fully applicable as of the initial Closing Date, or any change therein or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration application thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy not currently in effect or fully applicable as of the initial Closing Date (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any such authority, from a central bank or comparable agencygovernmental authority or body having jurisdiction, has does or would shall have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such changelaw, adoptiontreaty, phase-in rule, regulation, guideline or order, or such change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten (10) Business Days after written notice and demand by such Lender (which demand shall be accompanied by a statement setting forth with copies thereof to the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers Lessee shall from time to time pay to such Lender such additional amount as will amounts sufficient to compensate such Lender or such controlling Person for such reductionreduction (but, so long as in the case of outstanding Base Rate Advances, without duplication of any amounts already recovered by such amounts have accrued on or after Lender by reason of an adjustment in the day which is one hundred eighty (180) applicable Base Rate), provided that the Lessee shall not be obligated to pay such compensation with respect to reductions incurred by such Lender more than 120 days prior to the date on which that such Lender first made demand thereforhad actual knowledge thereof. Each certificate as to the amount payable under this Section 7.5(i) (which certificate shall set forth the basis for requesting such amounts in reasonable detail), submitted to Lessee by any Lender in good faith, shall, absent manifest error, be final, conclusive and binding for all purposes.
Appears in 1 contract
Samples: Master Agreement (Ruby Tuesday Inc)
Capital Adequacy. If Without limiting any other provisions of this Agreement, in the event that Lender shall reasonably determine determines after the date hereof that the introduction or change after the date of this Agreement of any change in, or the adoption or phase-in of, any applicable law, rule treaty, governmental (or regulation quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, or any change therein or in the interpretation by any governmental authority or administration application thereof by any governmental authority, central bank or comparable agency charged with authority after the interpretation or administration thereofdate of this Agreement, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any such authority, from a central bank or comparable agencygovernmental authority or body having jurisdiction over Lender which is introduced or changed after the date of this Agreement, has does or would shall have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such changelaw, adoptiontreaty, phase-in rule, regulation, guideline or order or such change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacyadequacy and assuming the full utilization of Lender's capital immediately before such adoption, change or compliance) by an amount reasonably deemed by such Lender or such controlling Person to be material, then Lender shall promptly after its determination of such occurrence notify Borrower thereof. The Borrower agrees to pay to Lender as an additional fee from time to time, upon within ten (10) days after written notice and demand by Lender, such amount as Lender (which demand certifies to be the amount that will compensate it for such reduction in connection with its obligations hereunder. A certificate of Lender claiming compensation under this Section shall be accompanied by a statement setting conclusive in the absence of manifest error or fraud and shall set forth the basis for such demand and a calculation nature of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall pay occurrence giving rise to such Lender such compensation, the additional amount as will compensate such Lender or such controlling Person for such reduction, so long as amounts to be paid to it hereunder and the method by which such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which were determined. In determining such amount, Lender first made demand thereformay use reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If at any time any Lender shall reasonably determine determines that any change in, or (a) the adoption or phase-in introduction of, any applicable law, rule or regulation regarding capital adequacy, or any change in or in the interpretation of, any law, treaty or administration thereof by governmental rule, regulation or order after the Closing Date regarding capital adequacy or liquidity, (b) compliance with any governmental authoritysuch law, treaty, rule, regulation or order issued after the Closing Date regarding capital adequacy or liquidity or (c) compliance with any guideline or request or directive from any central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy other Governmental Authority (whether or not having the force of law) of any such authority, central bank issued after the Closing Date regarding capital adequacy or comparable agency, has or would liquidity shall have the effect of reducing the rate of return on such Lender's ’s (or any corporation controlling such controlling Person's Lender’s) capital as a consequence of such Lender's its obligations hereunder or under or in respect of any Support Agreement Letter of Credit to a level below that which such Lender or such controlling Person corporation could have achieved but for such adoption, change, adoptioncompliance or interpretation, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be materialthen, then upon demand from time to time, upon demand time by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished such demand to the Administrative Agent), Borrowers Borrower shall pay to the Administrative Agent for the account of such Lender Lender, from time to time as specified by such Lender, additional amount as will amounts sufficient to compensate such Lender or such controlling Person for such reduction, so long . A certificate as to such amounts submitted to Borrower and the Administrative Agent by such Lender shall be prima facie evidence thereof; provided that, notwithstanding anything herein to the contrary (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines and directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or 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 in each case be deemed to have accrued on been enacted, adopted or issued, as the case may be, after the day which is one hundred eighty (180) Closing Date, regardless of the date actually enacted, adopted or issued. Borrower shall not be required to compensate any Lender pursuant to this Section 2.15 for any increased costs incurred more than 180 days prior to the date on which that such Lender first made demand notifies the Administrative Agent and Borrower of the events giving rise to such increased costs and of such Lender’s intention to claim compensation therefor; provided that if the events giving rise to such increased costs are retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Capital Adequacy. If The Borrower shall pay directly to each Bank from time to time on request of such Bank such amounts as such Bank may determine to be necessary to compensate such Bank (or, without duplication, the bank holding company of which such Bank is a subsidiary) for any Lender shall reasonably determine costs that it determines are attributable to the maintenance by such Bank (or such bank holding company), pursuant to any change in, or the adoption or phase-in of, any applicable law, rule law or regulation regarding capital adequacy, or any change in the interpretation interpretation, directive or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing at the national level any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A)), of capital in respect of its Commitment, Loans or participation in Letters of Credit (such authoritycompensation to include, central bank or comparable agencywithout limitation, has or would have the effect an amount equal to any reduction of reducing the rate of return on assets or equity of such Lender's Bank (or such controlling Person's capital as a consequence of such Lender's obligations hereunder or under any Support Agreement bank holding company) to a level below that which such Lender Bank (or such controlling Person bank holding company) could have achieved but for such changelaw, adoptionregulation, phase-interpretation, directive or request). Simultaneously with such Bank's request for any such amount, the Bank shall submit to the Borrower a certificate in or compliance (taking into consideration reasonable detail of such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement Bank setting forth the basis for the determination of such demand and a calculation amount payable under this Section 5.4. Determinations by each Bank for purposes of the amount thereof in reasonable detail, a copy of which this Section 5.4 shall be furnished conclusive in the absence of manifest error. In determining such amounts, the Banks may use any reasonable averaging, attribution and allocation methods. For purposes of this Section 5.4, "Regulatory Change" shall mean, with respect to Agent)any Bank, Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or any change after the day which is one hundred eighty date of this Agreement in Federal, state or foreign law or regulations (180including, without limitation, Regulation D) days prior or the adoption or making after such date of any interpretation, directive or request applying to a class of banks (other than those applying solely to banks formally determined by the date applicable regulator to be in a financially troubled condition) including such Bank of or under any Federal, state or foreign law or regulations (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any court or governmental or monetary authority charged with the interpretation or administration thereof. For purposes of this Section 5.4, "Basle Accord" shall mean the proposals for risk-based capital framework described by the Basle Committee on which such Lender first made demand thereforBanking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, after the Effective Date of any applicable law, rule rule, regulation or regulation treaty regarding capital adequacy, or any change therein after the Effective Date, or any change in the interpretation or administration thereof after the Effective Date by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive after the Effective Date regarding capital adequacy (whether or not having the force of law) of any such authorityGovernmental Authority, central bank or comparable agency, agency has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder hereunder, under the Notes or under any Support Agreement other Obligations held by it to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon satisfaction of the conditions precedent set forth in this Section, after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to Agent)) as provided below, Borrowers Borrower shall pay (subject to Section 11.7 hereof) to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction, so long . The certificate of any Lender setting forth such amount or amounts as shall be necessary to compensate it and the basis thereof and reasons therefor shall be delivered as soon as practicable to Borrower and shall create a rebuttable presumption as to the accuracy thereof. Borrower shall pay the amount shown as due on any such amounts have accrued on or certificate within five (5) Business Days after the day which is one hundred eighty (180) days prior to the date on which delivery of such certificate. In preparing such certificate, a Lender first made demand thereformay employ such assumptions and allocations of costs and expenses as it shall in good faitx xxxx xxxsonable and may use any reasonable averaging and attribution method.
Appears in 1 contract
Capital Adequacy. If any If, after the date of this Agreement, Lender shall reasonably determine ---------------- have determined in good faith that any change in, or the adoption or phase-in of, after the date of this Agreement of any applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or 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 the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would will have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence in respect of such Lender's its obligations hereunder or under any Support this Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material), then from time to time, upon time to the extent not already reflected in the Prime Rate Borrower shall pay to Lender after demand such additional amount or amounts as will compensate Lender for such reduction. All determinations made in good faith by such Lender (which demand of the additional amount or amounts required to compensate Lender in respect of the foregoing shall be accompanied by a statement setting conclusive in the absence of manifest error. In determining such amount or amounts, Lender may use any reasonable averaging and attribution methods. Lender's claim for reimbursement or compensation under this Section 2.09 shall be in writing and shall set forth the basis for such demand and a in reasonable detail Lender's calculation of the amount thereof in reasonable detailpayable to Lender hereunder. Notwithstanding the foregoing, a copy of which shall be furnished Lender may not seek compensation or reimburesement for amounts attributable to Agent), Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is period more than one hundred eighty (1801) days year prior to the date on which such Lender first made demand thereforof demand.
Appears in 1 contract
Capital Adequacy. If after the date hereof, any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation after the date hereof of any applicable law, rule rule, or regulation regarding capital adequacyadequacy (including, without limitation, any law, rule, or regulation implementing the Basle Accord), or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender (or its parent) with any request 25 guideline, request, or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority (including, without limitation, any guideline or other requirement implementing the Basle Accord), has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such Lender (or such controlling Person its parent) could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten (10) Business Days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or such controlling Person its parent) for such reduction. A certificate of such Lender claiming compensation under this Section in reasonable detail and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive, so long as provided that the determination thereof is made on a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods. With respect to each demand by a Lender under this Section 5.10, no Lender shall have the right to demand compensation for amounts have accrued on or after attributable to any reduction in such Lender's rate of return occurring at any time before the day date which is one hundred eighty three (1803) days months prior to the date on which such Lender first made gives such demand thereforfor compensation to the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Schlotzskys Inc)
Capital Adequacy. If If, after the date hereof, any Lender (or any Affiliate of any Lender) shall have reasonably determine determined that the adoption of any Applicable Law, governmental rule, regulation or order regarding the capital adequacy of banks or bank holding companies, or any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacytherein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender (or any Person controlling such Lender Affiliate of any Lender) with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authorityGovernmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender (or any Affiliate of such Lender's or such controlling Person's capital ) as a consequence of any of such Lender's ’s obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person it could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such the policies of any Lender (or Affiliate of any Lender's or such controlling Person's policies ) with respect to capital adequacy) by an amount deemed by adequacy immediately before such adoption, change or compliance and assuming that the capital of such Lender (or Affiliate of such controlling Person Lender) was fully utilized prior to be materialsuch adoption, then from time to timechange or compliance), then, upon demand by such Lender (which demand Lender, Borrower shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall immediately pay to such Lender such additional amount amounts as will shall be sufficient to compensate such Lender or for any such controlling Person for such reductionreduction actually suffered; provided, so long as such that there shall be no duplication of amounts have accrued on or after paid to any Lender pursuant to this sentence and Section 14.1. Such Lender’s determination of the day which is one hundred eighty (180) days prior amount to the date on which be paid to such Lender first made demand thereforby Borrower as a result of any event referred to in this Section 14.2 shall, absent manifest error, be deemed final, binding and conclusive upon Borrower.
Appears in 1 contract
Samples: Loan Agreement (Dts, Inc.)
Capital Adequacy. If With respect to any Lender shall reasonably determine that Borrowing or LC, if any change inin any present Law, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by application of any governmental authority, central bank or comparable agency charged with the interpretation or administration thereofpresent Law, or the any future Law regarding capital adequacy, or if compliance by any Issuing Lender or any Person controlling such Lender with any request 25 request, directive, or directive requirement imposed in the future by any Tribunal regarding capital adequacy (whether adequacy, or not having if any change in its written policies or in the force risk category of law) this transaction, in any of any such authoritythe foregoing events or circumstances, central bank or comparable agency, has or would have the effect of reducing reduces the rate of return on such Lender's or such controlling Person's its capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement this agreement to a level below that which such Lender or such controlling Person it otherwise could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's its policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person it to be materialmaterial (and it may, in determining the amount, utilize reasonable assumptions and allocations of costs and expenses and use any reasonable averaging or attribution method), then from time to time, upon demand by such (unless the effect is already reflected in the rate of interest then applicable under this agreement) Agent or that Lender (which demand through Agent) shall be accompanied by notify Borrower and deliver to Borrower a statement certificate setting forth in reasonable detail the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of necessary to compensate it (which shall be furnished to Agentcertificate is conclusive and binding absent manifest error), Borrowers and Borrower shall pay that amount to Agent or that Lender within five Business Days after demand. Notwithstanding the foregoing sentence, Borrower shall not be obligated to pay such amount unless notice thereof is given within 90 Business Days after any such Lender actually incurs such reduction in its return. Lenders are not aware of any event which would so reduce their rate of return as of the date hereof. If any such event giving rights to a demand by any Lender for compensation under this SECTION 3.16(b) occurs specifically with respect to such Lender, and generally with respect to national banks similarly situated for loans of the same classification, Borrower may elect to prepay the Obligation in full within 120 days after receipt of the above-described certificate from Agent by giving written notice to Agent or that Lender through Agent) of such additional amount election not more than five Business Days after receipt of such certificate from Agent; provided, however, that if Borrower does not prepay the Obligation within such 120-day period despite having given such notice, this agreement shall remain in full force and effect as will compensate if such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after notice was never given. The provisions of and undertakings and indemnification in this CLAUSE (b) shall survive the day which is one hundred eighty (180) days prior to satisfaction and payment of the date on which such Lender first made demand thereforObligation and termination of this agreement.
Appears in 1 contract
Samples: Credit Agreement (Affiliated Computer Services Inc)
Capital Adequacy. If any the Lender shall reasonably determine that the application or adoption of any change in, or the adoption or phase-in of, any applicable law, rule rule, regulation, directive, interpretation, treaty or regulation guideline regarding capital adequacy, or any change therein or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) , increases the amount of capital required or expected to be maintained by the Lender or any Person controlling the Lender, and such authority, central bank or comparable agency, has or would have increase is based upon the effect existence of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's ’s obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be materialand other commitments of this type, then from time to time, upon within ten days after demand by such Lender (which demand shall be accompanied by a statement setting forth from the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers Borrower shall pay to such the Lender such additional amount or amounts as will compensate such the Lender or such controlling Person Person, as the case may be, for such reductionincreased capital requirement. The determination of any amount to be paid by Borrower under this Section shall take into consideration the policies of the Lender or any Person controlling the Lender with respect to capital adequacy and shall be based upon any reasonable averaging, so long attribution and allocation methods. A certificate of the Lender setting forth in reasonable detail the amount or amounts (and the basis for the calculation of such amounts) as shall be necessary to compensate the Lender as specified in this Section 2.6 shall be delivered to Borrower and shall be conclusive in the absence of manifest error. Failure or delay on the part of the Lender to demand compensation pursuant to this Section shall not constitute a waiver of the Lender’s right to demand such amounts have accrued on compensation; provided that the Borrower shall not be required to compensate the Lender pursuant to this Section for any increased costs incurred or after the day which is one hundred eighty (180) reductions suffered more than 180 days prior to the date on which that the Lender notifies the Borrower of the change in law giving rise to such Lender first made demand increased costs or reductions, and of the Lender’s intention to claim compensation therefor.
Appears in 1 contract
Samples: Loan Agreement (Lifevantage Corp)
Capital Adequacy. If at any time any Lender shall reasonably determine determines that any change in, or (a) the adoption or phase-in introduction of, any applicable law, rule or regulation regarding capital adequacy, or any change in or in the interpretation of, any law, treaty or administration thereof by governmental rule, regulation or order after the Closing Date regarding capital adequacy, (b) compliance with any governmental authoritysuch law, treaty, rule, regulation or order issued after the Closing Date or (c) compliance with any guideline or request or directive from any central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy other Governmental Authority (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would issued after the Closing Date regarding capital adequacy shall have the effect of reducing the rate of return on such Lender's ’s (or any corporation controlling such controlling Person's Lender’s) capital as a consequence of such Lender's its obligations hereunder or under or in respect of any Support Agreement Letter of Credit to a level below that which such Lender or such controlling Person corporation could have achieved but for such adoption, change, adoptioncompliance or interpretation, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be materialthen, then upon demand from time to time, upon demand time by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished such demand to the Administrative Agent), Borrowers the applicable Borrower shall pay to the Administrative Agent for CREDIT AGREEMENT JOHNSONDIVERSEY, INC. the account of such Lender Lender, from time to time as specified by such Lender, additional amount as will amounts sufficient to compensate such Lender or such controlling Person for such reduction, so long . A certificate as to such amounts have accrued on or after submitted to the day which is one hundred eighty applicable Borrower and the Administrative Agent by such Lender shall be prima facie evidence thereof. The applicable Borrower shall not be required to compensate any Lender pursuant to this clause (180c) for any increased costs incurred more than 180 days prior to the date on which that such Lender first made demand notifies the Administrative Agent and the applicable Borrower of the events giving rise to such increased costs and of such Lender’s intention to claim compensation therefor; provided, however, that if the events giving rise to such increased costs are retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Capital Adequacy. If any Lender shall has reasonably determine determined that any change in, or the adoption or phase-in of, effectiveness of any applicable law, rule or regulation regarding capital adequacyadequacy or liquidity made after the date hereof, or any change therein made after the date hereof, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereofthereof made after the date hereof, or the compliance by any such Lender or any Person controlling such Lender its parent company with any request 25 or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank or comparable agencyagency made after the date hereof, in each case except to the extent merely proposed and not final, has or would have the effect of reducing the rate of return on such Lender's ’s or such controlling Person's its parent company’s capital or assets as a consequence of such Lender's its commitments or obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in effectiveness, change or compliance (taking into consideration the policies of such Lender's or such controlling Person's policies Lender and its parent company with respect to capital adequacy) by an amount deemed by such Lender adequacy or such controlling Person to be materialliquidity), then from time to timethen, upon demand by such Lender (which demand shall be accompanied by a statement setting forth within 10 Business Days after the basis for such demand and a calculation Borrower’s receipt of the amount thereof certificate referred to in reasonable detailthe next sentence, a copy of which shall be furnished to Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person and its parent company for such reduction, so long as ; provided that no such amounts have accrued on shall be payable with respect to reduction in rate of return incurred more than three (3) months before such Lender demands compensation under this Section 3.5. A certificate as to the amount of such reduction in rate of return, the good faith basis therefor and setting forth in reasonable detail the calculations used by the applicable Lender to arrive at the amount or amounts claimed to be due, shall be submitted to the Borrower and the Agent contemporaneously with a demand for payment hereunder. Each determination by a Lender of amounts owing under this Section shall be rebuttably presumptive evidence of the matters set forth therein. No demand for payment under this Section shall be made unless the Lender shall make comparable demands of other similarly situated borrowers. The provisions of this Section shall survive termination of this Credit Agreement and the payment of the Loans, Reimbursement Obligations and all other amounts payable hereunder. For purposes of this Section 3.5 and for purposes of Section 3.7, the phrase “the date hereof” means the Closing Date with respect to the Lenders or, in the case of any Lender becoming a party hereto after the day which is one hundred eighty (180) days prior Closing Date, the date such Lender becomes a party hereto. Notwithstanding the foregoing or anything to the contrary set forth herein, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and 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 in each case regardless of the date on which enacted, adopted, issued or implemented be deemed, as applicable (except to the extent merely proposed and not final), (i) an adoption or effectiveness of an applicable law, rule or regulation regarding capital adequacy or liquidity requirements, a change therein or a change in the interpretation or administration thereof by a Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof or (ii) compliance by such Lender first made demand thereforor its parent company with a request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of an authority, central bank or comparable agency.
Appears in 1 contract
Capital Adequacy. If If, after the date hereof, any Lender shall reasonably determine have determined that any change in, or either (i) the adoption or phase-in of, implementation of any applicable law, rule rule, regulation or regulation guideline of general applicability regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (ii) compliance by any such Lender (or any Person controlling lending office of such Lender Lender) with any request 25 or directive of general applicability regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lenderits or Borrower's obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten (10) days after demand by such Lender (Lender, which demand demands shall be accompanied by include a statement setting forth the basis for such demand calculation and a calculation of reference to the amount thereof in reasonable detailapplicable law, a copy of which shall be furnished to Agent)rule or regulation, Borrowers Borrower shall pay to such Lender such additional amount of amounts as will adequately compensate such Lender or such controlling Person for such reduction. Such Lender will use good faith and reasonable efforts to designate a different lending office for such Lender's Advances if such designation will avoid the need for, so long as or reduce the amount of, such amounts have accrued on or compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender. Each Lender shall notify the Agent and the Borrower of any event occurring after the day which is one hundred eighty (180) date of this Agreement entitling such Lender to compensation under this Section 8.7 within 45 days, after such Lender obtains actual knowledge thereof; provided that if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 8.7 in respect of any costs resulting from such event, only be entitled to payment for costs incurred from and after the date 45 days prior to the date on that such Lender gives such notice. A certificate of such Lender claiming compensation under this Section 8.7 and setting forth the additional amount of amounts to be paid to it hereunder, together with the description of the manner in which such amounts have been calculated, shall be conclusive in the absence of manifest error. In determining such amount, such Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If any after the date hereof, the Lender shall reasonably determine have determined that any change in, central bank or the adoption other Governmental Authority properly authorized to do so has adopted or phase-in of, implemented (and has taken all necessary action to legally adopt or implement) any applicable law, rule rule, or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance with which by the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such the Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such the Lender or such controlling Person could have achieved but for such adoption, implementation, change, adoption, phase-in or compliance (taking into consideration such the Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such the Lender or such controlling Person to be material, then from time to time, upon within ten Business Days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of Lender, the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers Borrower shall pay to such the Lender such additional amount or amounts as will compensate such the Lender or such controlling Person for such reduction, so long as such amounts have accrued on or . The Lender will give the Borrower notice of any event occurring after the day date of this Agreement which will entitle the Lender to compensation pursuant to this Section promptly after it obtains knowledge thereof and determines to request such compensation, and no claim by the Lender for compensation under this Section shall in any case be made until such time as the Lender determines that it is one hundred eighty (180) days prior legally required to comply with such law, rule, regulations or change thereto giving rise to such claim. A certificate of the date Lender claiming compensation under this Section and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive, provided that the determination thereof is made on which a reasonable basis. In determining such amount or amounts, the Lender first made demand thereformay use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If Without duplication with respect to costs addressed under Section 10.3 hereof, if after the date hereof the adoption of any Lender shall reasonably determine that Applicable Law regarding the capital adequacy of banks or bank holding companies, or any change in, in Applicable Law (whether adopted before or after the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, Agreement Date) or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement with respect to the Loans and the Revolving Loan Commitment, to a level below that which such Lender or such controlling Person it could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's ’s policies with respect to capital adequacyadequacy immediately before such adoption, change or compliance and assuming that such Lender’s capital was fully utilized prior to such adoption, change or compliance) by an amount reasonably deemed by such Lender or such controlling Person to be material, then from time to timethen, upon the earlier of thirty (30) days after demand by such Lender (which demand or the latest Maturity Date, the Borrower shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers shall promptly pay to such Lender such additional amount amounts as will shall be sufficient to compensate such Lender or such controlling Person for such reductionreduced return, so long as together with interest on such amounts have accrued on or amount from the thirtieth (30th) day after the day which is one hundred eighty (180) days prior date of demand or the latest Maturity Date, until payment in full thereof at the Base Rate. Before giving any notice to the date on which Administrative Agent pursuant to this Section 2.12, such Lender first made demand thereforshall designate a different lending office if such designation will avoid the need for giving such notice and will not, in the sole reasonable judgment of such Lender, be otherwise materially disadvantageous to such Lender. A certificate of such Lender setting forth the amount to be paid to such Lender by the Borrower as a result of any event referred to in this paragraph and supporting calculations in reasonable detail shall be prima facie evidence of such amount absent manifest error.
Appears in 1 contract
Samples: Loan Agreement (BGF Industries Inc)
Capital Adequacy. If any Lender shall reasonably determine In the event that any Lender, subsequent to the Closing Date, determines in the exercise of its reasonable business judgment that (x) any change in, or the adoption or phase-in of, any applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or (y) any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (z) compliance by any Lender or any Person controlling such Lender with any new request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother governmental or regulatory authority, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed material by such Lender or in the exercise of its reasonable business judgment, the Companies agree to pay to such controlling Person to be materialLender, then from time to time, upon no later than five (5) days following demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reductionreduction in rate of return. In determining such amount or amounts, so long as such amounts have accrued on Lender may use any reasonable averaging or after the day which is one hundred eighty (180) days prior attribution methods. The protection of this Section 8.12 shall be available to any Lender regardless of any possible contention of invalidity or inapplicability with respect to the date applicable law, regulation or condition. A certificate of a Lender setting forth such amount or amounts as shall be necessary to compensate such Lender with respect to this Section 8.12 and the calculation thereof, when delivered to the Companies, shall be conclusive and binding on each Company absent manifest error. In the event a Lender exercises its rights pursuant to this Section 8.12, and subsequent thereto determines that the amounts paid by the Companies exceeded the amount which such Lender first made demand thereforactually required to compensate such Lender for any reduction in rate of return on its capital, such excess shall be returned to the Companies by such Lender.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine In the event that the Lender, subsequent to the Closing Date, determines in the exercise of its reasonable business judgment that (x) any change in, or the adoption or phase-in of, any applicable law, rule rule, regulation or regulation guideline regarding capital adequacy, or (y) any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (z) compliance by any Lender or any Person controlling such the Lender with any new request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother governmental or regulatory authority, has or would have the effect of reducing the rate of return on such the Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such the Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such the Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed material by such the Lender or such controlling Person in the exercise of its reasonable business judgment, the Company agrees to be materialpay to the Lender, then from time to time, upon no later than five (5) days following written demand by such the Lender (which demand shall be accompanied by including a statement setting forth the basis for and explanation of such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agentcharges), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such the Lender or such controlling Person for such reductionreduction in rate of return. In determining such amount or amounts, so long as such amounts have accrued on the Lender may use any reasonable averaging or after the day which is one hundred eighty (180) days prior attribution methods. The protection of this Section 8.5 shall be available to the date Lender regardless of any possible contention of invalidity or inapplicability with respect to the applicable law, regulation or condition. A certificate of the Lender setting forth such amount or amounts as shall be necessary to compensate the Lender with respect to this Section 8.5 and the calculation thereof, when delivered to the Company, shall be conclusive and binding on the Company absent manifest error. In the event the Lender exercises its rights pursuant to this Section 8.5, and subsequent thereto determines that the amounts paid by the Company exceeded the amount which the Lender actually required to compensate the Lender for any reduction in rate of return on its capital, such Lender first made demand thereforexcess shall be returned to the Company by the Lender.
Appears in 1 contract
Samples: Second Lien Financing Agreement (Horsehead Holding Corp)
Capital Adequacy. If any Lender shall reasonably determine In the event that any Lender, subsequent to the Closing Date, determines in the exercise of its reasonable business judgment that (x) any change inin applicable Law, rule, regulation or the adoption or phase-in of, any applicable law, rule or regulation guideline regarding capital adequacy, or (y) any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the (z) compliance by any Lender or any Person controlling such Lender with any new request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother governmental or regulatory authority, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed material by such Lender or in the exercise of its reasonable business judgment, Borrowers agree to pay to such controlling Person to be materialLender, then from time to time, upon no later than five (5) days following demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detailLender, a copy of which shall be furnished to Agent), Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior reduction in rate of return; provided that notwithstanding anything in this Agreement to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or 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 in each case be deemed to be a "change in applicable Law", regardless of the date enacted, adopted or issued. In determining such amount or amounts, such Lender may use any reasonable averaging or attribution methods. The protection of this Section 5.9 shall be available to any Lender regardless of any possible contention of invalidity or inapplicability with respect to the applicable Law, regulation or condition. A certificate of a Lender setting forth such amount or amounts as shall be necessary to compensate such Lender with respect to this Section 5.9 and the calculation thereof, when delivered to Borrowers, shall be conclusive and binding on each Borrower absent manifest error. In the event a Lender exercises its rights pursuant to this Section 5.9, and subsequent thereto determines that the amounts paid by Borrowers exceeded the amount which such Lender first made actually required to compensate such Lender for any reduction in rate of return on its capital, such excess shall be returned to Borrowers by such Lender. Failure or delay on the part of any Lender to demand therefor.compensation pursuant to this Section 5.9 shall not constitute a waiver of such Lender's right to demand such compensation.
Appears in 1 contract
Samples: Credit and Security Agreement (Greenbrook TMS Inc.)
Capital Adequacy. If If, after the Closing Date, any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation of any applicable law, rule or regulation regarding capital adequacyadequacy (including, without limitation, any law, rule or regulation implementing the Basle Accord), or after the Closing Date any change therein, or after the Closing Date any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender (or its parent) with any guideline, request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority issued after the Closing Date (including, without limitation, any guideline or other requirement implementing the Basle Accord), has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such Lender (or such controlling Person its parent) could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten Business Days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or such controlling Person its parent) for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which . A certificate of such Lender first claiming compensation under this SECTION 4.6 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error, PROVIDED, HOWEVER, that the determination thereof is made demand thereforon a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If after the date hereof, any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation of any applicable law, rule rule, or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender (or its parent) with any request 25 guideline, request, or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority, has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such Lender (or such controlling Person its parent) could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within 10 Business Days after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to the Agent), Borrowers the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or such controlling Person its parent) for such reduction. A certificate of such Lender claiming compensation under this Section and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive, so long provided that the determination thereof is made on a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods. Additional Costs in Respect of Letters of Credit. If as such amounts have accrued on a result of any Regulatory Change there shall be imposed, modified, or after deemed applicable any tax, reserve, special deposit, or similar requirement against or with respect to or measured by reference to Letters of Credit issued or to be issued hereunder or the day which is one hundred eighty (180) days prior Issuing Bank's commitment to issue Letters of Credit hereunder, and the result shall be to increase the cost to the date Issuing Bank of issuing or maintaining any Letter of Credit or its commitment to issue Letters of Credit hereunder or reduce any amount receivable by the Issuing Bank hereunder in respect of any Letter of Credit (which increase in cost, or reduction in amount receivable, shall be the result of the Issuing Bank's reasonable allocation of the aggregate of such increases or reductions resulting from such event), then, upon demand by the Issuing Bank, the Borrower agrees to pay the Issuing Bank, from time to time as specified by the Issuing Bank, such additional amounts as shall be sufficient to compensate the Issuing Bank for such increased costs or reductions in amount. A statement as to such increased costs or reductions in amount incurred by the Issuing Bank, submitted by the Issuing Bank to the Borrower, shall be conclusive as to the amount thereof, provided that the determination thereof is made on which such Lender first made demand therefora reasonable basis.
Appears in 1 contract
Samples: Credit Agreement (Ezcorp Inc)
Capital Adequacy. If The Borrower shall pay directly to each Bank from time to time on request of such Bank such amounts as such Bank may determine to be necessary to compensate such Bank (or, without duplication, the bank holding company of which such Bank is a subsidiary) for any Lender shall reasonably determine costs that it determines are attributable to the maintenance by such Bank (or such bank holding company), pursuant to any change in, or the adoption or phase-in of, any applicable law, rule law or regulation regarding capital adequacy, or any change in the interpretation interpretation, directive or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing at the national level any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A)), of capital in respect of its Commitment, Loans or participation in Letters of Credit (such authoritycompensation to include, central bank or comparable agencywithout limitation, has or would have the effect an amount equal to any reduction of reducing the rate of return on assets or equity of such Lender's Bank (or such controlling Person's capital as a consequence of such Lender's obligations hereunder or under any Support Agreement bank holding company) to a level below that which such Lender Bank (or such controlling Person bank holding company) could have achieved but for such changelaw, adoptionregulation, phase-interpretation, directive or request). Simultaneously with such Bank's request for any such amount, the Bank shall submit to the Borrower a certificate in or compliance (taking into consideration reasonable detail of such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement Bank setting forth the basis for the determination of such demand and a calculation amount payable under this SECTION 5.4. Determinations by each Bank for purposes of the amount thereof in reasonable detail, a copy of which this SECTION 5.4 shall be furnished conclusive in the absence of manifest error. In determining such amounts, the Banks may use any reasonable averaging, attribution and allocation methods. For purposes of this SECTION 5.4, "Regulatory Change" shall mean, with respect to Agent)any Bank, Borrowers shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or any change after the day which is one hundred eighty date of this Agreement in Federal, state or foreign law or regulations (180including, without limitation, Regulation D) days prior or the adoption or making after such date of any interpretation, directive or request applying to a class of banks (other than those applying solely to banks formally determined by the date applicable regulator to be in a financially troubled condition) including such Bank of or under any Federal, state or foreign law or regulations (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any court or governmental or monetary authority charged with the interpretation or administration thereof. For purposes of this SECTION 5.4, "Basle Accord" shall mean the proposals for risk-based capital framework described by the Basle Committee on which such Lender first made demand thereforBanking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine have determined that any change in, or the adoption after the Effective Date or phase-in of, effectiveness after the Effective Date (whether or not previously announced) of any applicable law, rule rule, regulation or regulation treaty regarding capital adequacy, or any change therein after the Effective Date, or any change in the interpretation or administration thereof after the Effective Date by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender with any request 25 or directive after the Effective Date regarding capital adequacy (whether or not having the force of law) of any such authorityGovernmental Authority, central bank or comparable agency, agency has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's ’s capital as a consequence of such Lender's its obligations hereunder hereunder, under the Letters of Credit, the Notes or under any Support Agreement other Obligations held by it to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in change or compliance (taking into consideration such Lender's or such controlling Person's ’s policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon satisfaction of the conditions precedent set forth in this Section 7.10, after demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, with a copy of which shall be furnished to Agent)) as provided below, Borrowers shall pay (subject to Section 11.7 hereof) to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. The certificate of any Lender setting forth such amount or amounts as shall be necessary to compensate it and the basis thereof and reasons therefor shall be delivered as soon as practicable to Borrower and shall be conclusive and binding, so long absent manifest error. Borrower shall pay the amount shown as due on any such amounts have accrued on or certificate within five (5) Business Days after the day which is one hundred eighty (180) days prior to the date on which delivery of such certificate. In preparing such certificate, a Lender first made demand thereformay employ such assumptions and allocations of costs and expenses as it shall in good fxxxx xxxx reasonable and may use any reasonable averaging and attribution method.
Appears in 1 contract
Samples: Loan Agreement (Carrols Corp)
Capital Adequacy. If after the date hereof, any Lender shall reasonably determine have determined that any change in, or the adoption or phase-in of, implementation of any applicable law, rule rule, or regulation regarding capital adequacyadequacy (including, without limitation, any law, rule, or regulation implementing the Basle Accord), or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency other Governmental Authority charged with the interpretation or administration thereof, or the compliance by any Lender or any Person controlling such Lender (or its parent) with any request 25 guideline, request, or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyother Governmental Authority (including, without limitation, any guideline or other requirement implementing the Basle Accord), has or would have the effect of reducing the rate of return on such Lender's (or such controlling Person's its parent's) capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the transactions contemplated hereby to a level below that which such Lender (or such controlling Person its parent) could have achieved but for such change, adoption, phase-in implementation, change or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon within ten (10) Business Days after demand by such Lender (with a copy to the Administrative Agent), which demand shall be accompanied delivered by a statement setting forth the basis for such demand and a calculation Lender to Borrower as promptly as practicable after such Lender obtains knowledge of the amount thereof such reduction in reasonable detailits rate of return, a copy of which shall be furnished to Agent), Borrowers Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or such controlling Person its parent) for such reduction, so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which . A certificate of such Lender first claiming compensation under this SECTION and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive, absent manifest error and provided that the determination thereof is made demand thereforon a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods.
Appears in 1 contract
Capital Adequacy. If any Lender Bank shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, thereof or the compliance by any Lender such Bank (or any Person controlling such Lender its lending office) with any request 25 or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling PersonBank's capital as a consequence of such Lender's its obligations hereunder or under any Support Agreement the Letters of Credit or credit extended by it hereunder to a level below that which such Lender or such controlling Person Bank could have achieved but for such changelaw, adoptionrule, phase-in regulation, change or compliance (taking into consideration such Lender's or such controlling PersonBank's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person Bank to be material, then from time to time, upon demand time as specified by such Lender (which demand shall be accompanied by a statement setting forth Bank the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrowers Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person Bank for such reductionreduction in rate of return. A certificate of any Bank claiming compensation under this Section and setting forth the additional amount or amounts to be paid to it hereunder in reasonable detail shall be deemed PRIMA FACIE correct. In determining such amount, so long as such amounts have accrued on Bank may use any reasonable averaging and attribution methods. A Bank shall not be entitled to compensation under this Section with respect to any change, adoption or after interpretation (a "CHANGE") for any period prior to the day earlier of (i) the date it notifies the Company of the Change or (ii) the date which is one hundred eighty thirty (18030) days prior to the date such Bank obtains actual knowledge of the Change giving rise to the request for compensation if the Company is notified of the Change prior to the lapse of such 30-day period. Each Bank and the Agent shall use reasonable efforts to minimize the cost imposed on the Company in respect of any such increased capital requirement and shall compute the assessment of any such cost related to such increased capital on a nondiscriminatory basis among the Company, on the one hand, and other borrowers to which it applies, on the other hand, and neither such Lender first made Bank nor any corporation controlling such Bank nor the Agent shall be entitled to demand thereforcompensation or be compensated for any increased capital requirement from the Company hereunder in excess of the amount so computed.
Appears in 1 contract
Capital Adequacy. If any Lender shall reasonably determine that any change in, or the adoption or phase-Change in of, any applicable law, rule or regulation Law regarding capital adequacy, adequacy or any change in the interpretation or administration thereof liquidity by any governmental authorityGovernmental Authority, central bank or comparable agency charged by Applicable Law with the interpretation or administration thereof, or the compliance by any such Lender or any Person controlling such Lender its parent corporation with any request 25 or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank bank, or comparable agency, in each case made subsequent to the date hereof, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's the capital of any Affected Party as a consequence of such Lender's its obligations hereunder or under any Support Agreement arising in connection herewith to a level below that which any such Lender or such controlling Person Affected Party could have achieved but for such introduction, change, adoption, phase-in compliance or compliance change (taking into consideration the policies of such Lender's or such controlling Person's policies Affected Party with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender or such controlling Person Affected Party to be material, then from time to time, upon on the next Monthly Payment Date following the receipt of written demand by such Lender Affected Party, the Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction. If as a result of any event or circumstance similar to those described in Sections 2.11(b) or (which c), any Affected Party is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, then on the next Monthly Payment Date following the receipt of written demand by such Affected Party, the Borrower shall pay to such Affected Party such additional amount or amounts as may be accompanied necessary to reimburse such Affected Party for any amounts paid by it. In determining any amount provided for in this Section 2.11, the Affected Party may use any reasonable averaging and attribution methods. Any Affected Party making a statement setting forth claim or demand under this Section 2.11 shall submit to the Borrower a certificate as to such additional or increased cost or reduction, showing the basis for such claim or demand and a calculation of the amount thereof in reasonable detaildetail including calculation thereof, a copy of which basis must be reasonable and supported, which certificate shall be furnished conclusive absent manifest error. If any material amounts are required to Agentbe paid by the Borrower pursuant to Section 2.11(b) or (c), Borrowers the Borrower shall pay be entitled to, upon written notice (which notice shall be received within five (5) Business Days after the applicable demand or claim), prepay all outstanding Advances held by such Affected Party and terminate the Agreement with respect to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after Affected Party. Each notice delivered by the day which is one hundred eighty (180) days prior Borrower pursuant to the date on which such Lender first made demand thereforthis Section shall be irrevocable.
Appears in 1 contract
Samples: Credit Agreement (UWM Holdings Corp)
