Change in Circumstances. If after the date hereof the introduction of or any change in any Applicable Law relating to any Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental Authority: 12.1.1 subjects the Advising Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2); 12.1.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacy, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lender; 12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities; 12.1.4 imposes on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or 12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of: 12.1.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof; 12.1.7 reducing the amount of the Obligations; 12.1.8 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lender’s overall income or capital in any relevant jurisdiction); or
Appears in 2 contracts
Samples: Credit Agreement (Mohegan Tribal Gaming Authority), Credit Agreement (Mohegan Tribal Gaming Authority)
Change in Circumstances. If after subsequent to the date hereof hereof, the introduction of or any change in any Applicable Law relating to any Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental AuthorityBody or compliance by the Lender with any request or direction of any Governmental Body given after the date hereof:
12.1.1 3.8.1 subjects the Advising Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations (in each case other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2Taxes);
12.1.2 3.8.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacycapital, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 3.8.3 imposes any Taxes on reserves or deemed reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the either Credit FacilitiesFacility;
12.1.4 3.8.4 imposes on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s any Bankers’ Acceptance issued by it hereunder; or
12.1.5 3.8.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or either of the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 3.8.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit FacilitiesFacility, any Advance, any Loan or any portion thereof;
12.1.7 3.8.7 reducing the amount of the Obligations;
12.1.8 3.8.8 directly or indirectly reducing the effective return to such Advising the Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lender’s overall income or capital in any relevant jurisdictionExcluded Taxes); or
3.8.9 except to the extent resulting from compliance with section 347 of the Criminal Code (Canada), causing the Lender to make any payment or to forego any interest, fees or other return on or calculated by reference to any sum received or receivable by the Lender hereunder; then the Lender shall in each case forthwith advise the Borrower accordingly and the Borrower shall promptly upon demand by the Lender pay or cause to be paid to the Lender such additional amounts as shall be sufficient to fully indemnify the Lender for such additional cost, reduction, payment, foregone interest or other return. A certificate of the Lender documenting the relevant calculations and submitted to the Borrower by the Lender shall be prima facie evidence thereof, absent manifest error. In computing any compensation payable by the Borrower under this section 3.8 the Lender shall use reasonable averaging and attribution rules of application. Notwithstanding the foregoing provisions of this section 3.8, the Lender may not claim compensation from the Borrower under this section 3.8 unless the Lender is generally claiming compensation to the same extent from its other customers affected by the relevant occurrence (to the extent it is entitled to do so under its agreements with those customers).
Appears in 2 contracts
Samples: Credit Agreement (Usg Corp), Credit Agreement (Usg Corp)
Change in Circumstances. If after the date hereof the introduction of or any change Change in any Applicable Law relating to Law:
5.3.1. subjects any Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental Authority:
12.1.1 subjects the Advising Lender its Holding Body Corporate) to, or causes the withdrawal or termination of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments on any Lender (or its Holding Body Corporate) due to the Advising Lender Lenders (or its Holding Body Corporate) or increases any existing Taxes on payments of the Loan Obligations (other than Excluded the Lender's Own Taxes (or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2those of its Holding Body Corporate));
12.1.2 5.3.2. imposes, modifies or deems applicable any reserve, liquidity, cash cash, margin, capital adequacycapital, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lenderany Lender (or those of its Holding Body Corporate), or any unutilized portion of any Credit Facility or any obligations of any Lender under any Loan Document;
12.1.3 5.3.3. imposes on any Lender (or its Holding Body Corporate) any Taxes on reserves or deemed reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the any Credit FacilitiesFacility;
12.1.4 5.3.4. imposes on the Advising any Lender (or its Holding Body Corporate) or requires there to be maintained by the Advising any Lender (or its Holding Body Corporate) any capital adequacy or additional capital requirement (including, without limitation, including a requirement which affects the Advising Lender’s Lenders' (or its Holding Body Corporate's) allocation of capital resources to its obligations) in respect of any Credit Facility, any Advance, any Derivative, this Agreement or the Advising Lender’s Lenders' obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising any Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it any Credit Facility, any Advance or any Derivative hereunder; or
12.1.5 5.3.5. imposes on the Advising any Lender (or its Holding Body Corporate) any other condition or requirement with respect to this Agreement or the a Credit Facilities Facility (other than Excluded Taxesthe Lender's Own Taxes (or those of its Holding Body Corporate)); and, in each case in excess the sole determination of such requirements or conditions which were in effect on Lender (the Initial Advance Date and "Affected Lender"), such occurrence has the effect of:
12.1.6 5.3.6. increasing the cost to the Advising Affected Lender (or its Holding Body Corporate) of the Affected Lender agreeing to make or making, maintaining or funding the a Credit FacilitiesFacility, any Advance, any Loan Derivative or any portion of any thereof;
12.1.7 5.3.7. reducing the amount of the ObligationsLoan Obligations or the net income received by the Affected Lender in respect of this Agreement, a Credit Facility, any Advance, any Derivative, or any portion of any thereof;
12.1.8 5.3.8. directly or indirectly reducing the effective return to such Advising the Affected Lender (or its Holding Body Corporate) under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax Income Tax being imposed on the Advising Affected Lender’s 's (or its Holding Body Corporate's) overall income or capital in any relevant jurisdictionincome); or
Appears in 1 contract
Samples: Loan Agreement (Gerdau Usa Inc)
Change in Circumstances. If after the date hereof the introduction of or any change Change in any Applicable Law relating to Law:
5.3.1 subjects any Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental Authority:
12.1.1 subjects the Advising Lender its Holding Body Corporate) to, or causes the withdrawal or termination of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments on any Lender (or its Holding Body Corporate) due to the Advising Lender Lenders (or its Holding Body Corporate) or increases any existing Taxes on payments of the Loan Obligations (other than Excluded the Lender's Own Taxes (or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2those of its Holding Body Corporate));
12.1.2 5.3.2 imposes, modifies or deems applicable any reserve, liquidity, cash cash, margin, capital adequacycapital, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lenderany Lender (or those of its Holding Body Corporate), or any unutilized portion of any Credit Facility or any obligations of any Lender under any Loan Document;
12.1.3 5.3.3 imposes on any Lender (or its Holding Body Corporate) any Taxes on reserves or deemed reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the any Credit FacilitiesFacility;
12.1.4 5.3.4 imposes on the Advising any Lender (or its Holding Body Corporate) or requires there to be maintained by the Advising any Lender (or its Holding Body Corporate) any capital adequacy or additional capital requirement (including, without limitation, including a requirement which affects the Advising Lender’s Lenders' (or its Holding Body Corporate's) allocation of capital resources to its obligations) in respect of any Credit Facility, any Advance, any Derivative, this Agreement or the Advising Lender’s Lenders' obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising any Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it any Credit Facility, any Advance or any Derivative hereunder; or
12.1.5 5.3.5 imposes on the Advising any Lender (or its Holding Body Corporate) any other condition or requirement with respect to this Agreement or the a Credit Facilities Facility (other than Excluded Taxesthe Lender's Own Taxes (or those of its Holding Body Corporate)); and, in each case in excess the sole determination of such requirements or conditions which were in effect on Lender (the Initial Advance Date and "AFFECTED LENDER"), such occurrence has the effect of:
12.1.6 5.3.6 increasing the cost to the Advising Affected Lender (or its Holding Body Corporate) of the Affected Lender agreeing to make or making, maintaining or funding the a Credit FacilitiesFacility, any Advance, any Loan Derivative or any portion of any thereof;
12.1.7 5.3.7 reducing the amount of the ObligationsLoan Obligations or the net income received by the Affected Lender in respect of this Agreement, a Credit Facility, any Advance, any Derivative, or any portion of any thereof;
12.1.8 5.3.8 directly or indirectly reducing the effective return to such Advising the Affected Lender (or its Holding Body Corporate) under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax Income Tax being imposed on the Advising Affected Lender’s 's (or its Holding Body Corporate's) overall income or capital in any relevant jurisdictionincome); or
Appears in 1 contract
Change in Circumstances. If after the date hereof the introduction of or any change in any Applicable Law relating to any Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental Authority:
12.1.1 Body or compliance by any Lender with any request (provided that banks or non-bank lenders, as the case may be, would customarily comply therewith) or direction of any Governmental Body: subjects the Advising any Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, any Taxes on payments of the Obligations or changes the basis of taxation of payments due to the Advising any Lender or increases any existing Taxes on payments of the Obligations (other than Excluded Taxes of application to the overall income or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2capital of such Lender);
12.1.2 ; imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacycapital, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising any Lender;
12.1.3 ; imposes any Taxes on reserves or deemed reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 Facility; imposes on the Advising any Lender or requires there to be maintained by the Advising any Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising such Lender’s 's allocation of capital resources to its obligations) in respect of the Advising such Lender’s 's obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising any Lender of a contingent liability with respect to the Advising Lender’s any Bankers’ ' Acceptance issued by it hereunder; or
12.1.5 or imposes on the Advising any Lender any other condition or requirement with respect to this Agreement or the Credit Facilities Facility (other than Excluded TaxesTaxes of application to the overall income or capital of such Lender); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 : increasing the cost to the Advising such Lender of agreeing to make or making, making or maintaining or funding the Credit FacilitiesFacility, any Advance, any Loan or any portion thereof;
12.1.7 ; reducing the amount of the Obligations;
12.1.8 ; directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lender’s 's overall income or capital from a tax being imposed on the Lender's overall capital); or causing such Lender to make any payment or to forego any interest, fees or other return on or calculated by reference to any sum received or receivable by such Lender hereunder; then, upon demand being made to the Canadian Borrower or the U.S. Borrower, as the case may be, by such Lender accompanied by a certificate of such Lender documenting the relevant calculations (which certificate shall be prima facie evidence of the contents thereof), the Canadian Borrower or the U.S. Borrower, as the case may be, shall pay or cause to be paid to such Lender such additional amounts as shall be sufficient to fully indemnify such Lender for such additional cost, reduction, payment, foregone interest or other return but only in respect of the period after the effective date of the introduction or change in any relevant jurisdiction); orApplicable Law, change of interpretation or application or request or direction as the case may be. If, after the receipt of any payment by the Canadian Borrower or the U.S. Borrower to a Lender under this Section 3.09, such Lender obtains a refund, credit, allowance, or remission on account of the additional cost, reduction, payment, foregone interest or other return in respect of which such payment was received, the Lender shall, to the extent allocable to payment by either of the Borrowers under this Section 3.09 and to the extent it can do so without prejudice to its ability to retain the amount of such refund, credit, allowance or remission, account to the Canadian Borrower or the U.S. Borrower, as the case may be, for an amount equal to the refund received or credit, allowance or remission given net of its out-of-pocket costs. If such Lender is subsequently advised of the requirement that it repay such refund, credit, allowance or remission, the applicable Borrower shall return to such Lender any amount that it had accounted for.
Appears in 1 contract
Change in Circumstances. If (a) In the event that after the date hereof the introduction of or Closing Date any change in any Applicable Law relating to any Lender (the “Advising Lender”), or any change in the official interpretation or application thereof by any Governmental Authority:administration thereof
12.1.1 subjects (i) subject the Advising Lender to, or causes increase the withdrawal net tax, levy, impost, duty, charge, fee, deduction or termination withholding with respect to any Eurodollar Loan (other than withholding tax imposed by the United States of America or any political subdivision or taxing authority thereof or any other tax, levy, impost, duty, charge, fee, deduction or withholding (A) that is measured with respect to the overall net income of the Lender or of a previously granted exemption Lending Office of the Lender, and that is imposed by the United States of America, or by the jurisdiction in which the Lender or Lending Office is incorporated, in which the Lending Office is located, managed or controlled or in which the Lender has its principal office (or any political subdivision or taxing authority thereof or therein), or (B) that is imposed solely by reason of the Lender failing to make a declaration of, or otherwise to establish, non-residence, or to make any other claim for exemption, or otherwise to comply with respect toany certification, any Taxes identification, information, documentation or changes reporting requirements prescribed under the laws of the relevant jurisdiction, in those cases where the Lender may properly make such declaration or claim or so establish non-residence or otherwise comply); or
(ii) change the basis of taxation of payments due any payment to the Advising Lender of principal or any interest on any Eurodollar Loan or other fees and amounts payable to the Lender hereunder, or any combination of the foregoing; other than withholding tax imposed by the United States of America or any political subdivision or taxing authority thereof or any other tax, levy, impost, duty, charge, fee, deduction or withholding that is measured with respect to the overall net income of the Lender or increases any existing Taxes on payments of a Lending Office of the Obligations (other than Excluded Taxes or Taxes for which an amount was paid Lender, and that is imposed by the Borrower pursuant to Section 12.2United States of America, or by the jurisdiction in which the Lender or Lending Office is incorporated, in which such Lending Office is located, managed or controlled or in which the Lender has its principal office (or any political subdivision or taxing authority thereof or therein);; or
12.1.2 imposes(iii) impose, modifies modify or deems deem applicable any reserve, liquidity, cash margin, capital adequacy, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against any assets held by, or deposits in with or for the account of, of or loans by, or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect commitments by an office of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to any Eurodollar Loan; or and the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing the amount of the Obligations;
12.1.8 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions foregoing shall be to increase the actual cost to the Lender of making or obligations contemplated maintaining any Eurodollar Loan hereunder or to reduce the amount of any payment (whether of principal, interest or otherwise) received or receivable by this Agreement the Lender in connection with any Eurodollar Loan hereunder, or to require the Lender to make any payment in connection with any Eurodollar Loan hereunder, in each case by or in an amount which the Lender in its sole judgment shall deem material, then and in each case the Borrower shall pay to the Lender, as provided in paragraph (other than a c) below, such amounts as shall be necessary to compensate the Lender for such cost, reduction resulting from a higher rate of income tax being imposed on the Advising Lender’s overall income or capital in any relevant jurisdiction); orpayment.
Appears in 1 contract
Samples: Credit, Security, Guaranty and Pledge Agreement (Dove Entertainment Inc)
Change in Circumstances. 13.1 If after by reason of~
13.1.1 any Change in Law; and/or
13.1.2 a requirement or a request by any statutory or monetary authority to maintain special deposits or reserve assets, there are any Increased Costs, the Lender shall be entitled (but not obliged) to calculate such an increased Interest Rate as will have the effect, if interest accrues at such increased Interest Rate, of placing the Lender in the same financial position it would have been in had the Change Event not occurred (such rate the "Recalculated Rate").
13.2 The Lender shall deliver a written notice (the "Adjustment Notice") to the Borrower in which it advises the Borrower of the Change Event which has occurred, the Recalculated Rate and the manner in which it has calculated such rate, such notice to contain all such additional information (if any) as the Borrower could reasonably be expected to require in order to enable it to satisfy itself that the Lender's calculation of the Recalculated Rate is correct. Interest shall thereafter and with effect from the date hereof on which the introduction applicable Increased Costs are first incurred by the Lender, accrue on the Loan Amount at the Recalculated Rate.
13.3 If the Borrower wishes to dispute the correctness of any Recalculated Rate, it shall do so by delivering written notice to that effect (a "Dispute Notice") to the Lender within 30 (thirty) days after receipt by it of the Adjustment Notice. The Borrower shall, in its Dispute Notice, set out its calculation of the Recalculated Rate.
13.4 If the Borrower delivers a Dispute Notice to the Lender~
13.4.1 the parties shall refer the matter for determination to the Dispute Auditors;
13.4.2 the Dispute Auditors shall determine the Recalculated Rate;
13.4.3 the Dispute Auditors shall, in making his determination, act as an expert and not as an arbitrator and shall be entitled to adopt such procedure and to rely on such evidence as he may deem appropriate;
13.4.4 the determination by the Dispute Auditors shall be final and binding on the parties;
13.4.5 the Dispute Auditors' costs in making their determination shall be paid by the party whose quantification of the Recalculation Rate is furthest from the Dispute Auditors' determination thereof, or if the parties' determinations are equidistant from the Dispute Auditors' determination, by the parties in equal shares.
13.5 If the Borrower disputes the correctness of any change Recalculated Rate (in the manner envisaged in 13.3 above), then, pending the determination of such dispute by the Dispute Auditors (as envisaged in 13.3 above) -
13.5.1 interest shall nevertheless accrue at the disputed Recalculation Rate as if the Lender's calculation of such Recalculated Rate is correct;
13.5.2 within 30 (thirty) Business Days after receipt by the parties of the Dispute Auditors' determination (1) if any Applicable Law relating payment of any interest calculated at the Recalculation Rate has been made by the Borrower, the party indebted to the other as a result of such determination shall make payment of such indebtedness to the other party, or (2) if no payment of interest calculated at the Recalculation Rate has been made, the Loan Amount shall be adjusted accordingly.
13.6 This clause 13 shall not apply to any Lender (the “Advising Lender”), or Increased Costs attributable to any change in the interpretation or application thereof by any Governmental Authority:
12.1.1 subjects rate of tax on the Advising Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments overall net income of the Obligations (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2);
12.1.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacy, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing the amount of the Obligations;
12.1.8 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lender’s overall income or capital in any relevant jurisdiction); or.
Appears in 1 contract
Samples: Loan Agreement (Earn-a-Car Inc.)
Change in Circumstances. If after the date hereof the introduction of or any change in any Applicable Law relating to any a Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental AuthorityEntity or compliance by a Lender with any request or direction of any Governmental Entity:
12.1.1 2.11.1 subjects the Advising such Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, to any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations amounts owing to such Lender (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2Taxes);
12.1.2 2.11.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacycapital, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising such Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 2.11.3 imposes on the Advising such Lender or requires there to be maintained by the Advising such Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising such Lender’s allocation of capital resources to its obligations) in respect of the Advising such Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 2.11.4 imposes on the Advising such Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 2.11.5 increasing the cost to the Advising such Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan this Agreement or any portion thereof;
12.1.7 2.11.6 reducing the amount of the ObligationsObligations owing to such Lender;
12.1.8 2.11.7 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising such Lender’s overall income or capital in any relevant jurisdictionincome); or
Appears in 1 contract
Samples: Credit Agreement
Change in Circumstances. If Section 11.1 [Reserved].
Section 11.1 Basis for Determining Interest Rate Inadequate or Unfair; LIBOR Transition Event. In the case of Eurodollar Rate Loans, if on or prior to the first day of any Interest Period:
(a) Unless a LIBOR Transition Event and its related LIBOR Replacement Date has occurred, (i) the Administrative Agent is unable to obtain a quotation for the London Interbank Offered Rate as contemplated by Section 2.5; or (ii) the Majority Lenders advise the Administrative Agent that as a result of changes arising after the date hereof of this Agreement the introduction of London Interbank Offered Rate they have determined, in their commercially reasonable judgment, that a material disruption to LIBOR or any change in any Applicable Law relating to any Lender (the “Advising Lender”), or any a change in the interpretation methodology of calculating LIBOR has occurred or application the Majority Lenders advise the Administrative Agent that as a result of changes arising after the date of this Agreement the London Interbank Offered Rate as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Lenders of funding or maintaining their Eurodollar Rate Loans for such Interest Period, in each case the Administrative Agent shall forthwith give notice thereof (by any Governmental Authority:
12.1.1 subjects the Advising Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments due telephone confirmed in writing) to the Advising Lender or increases any existing Taxes on payments Borrower, the Lenders and the Collateral Agent, whereupon until the Administrative Agent notifies the Borrower and the Collateral Agent that the circumstances giving rise to such suspension no longer exist, the obligations (if any) of the Obligations Lenders to make Eurodollar Rate Loans shall be fulfilled based on LIBOR in effect for the prior Interest Period; provided if such period of unavailability continues for more than 30 days, then on the close of business on the 30th day, a LIBOR Transition Event shall have been deemed to occur and the following day shall be considered the LIBOR Replacement Date.
(other than Excluded Taxes or Taxes for which an amount was paid by b) If a LIBOR Transition Event and its related LIBOR Replacement Date have occurred, then the Administrative Agent and the Borrower pursuant may choose a replacement index for LIBOR and make adjustments to Section 12.2);
12.1.2 imposesapplicable margins and related amendments to this Agreement as referred to below such that, modifies or deems applicable any reserveto the extent practicable, liquiditythe all-in interest rate based on the replacement index will be substantially equivalent to the all-in LIBOR-based interest rate in effect prior to its replacement. The Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect the replacement index, cash marginthe adjusted margins and such other related amendments as may be appropriate, capital adequacyin the discretion of the Administrative Agent, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect implementation and administration of the undrawn portion of replacement index-based rate. Notwithstanding anything to the Advising Lender’s Rateable Portion of contrary in this Agreement or the Credit Facilities;
12.1.4 imposes on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement other Loan Documents (including, without limitation, a requirement which affects the Advising Lender’s allocation Section 12.5), such amendment shall become effective without any further action or consent of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect party to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect at 5:00 p.m. New York City time on the Initial Advance Date and such occurrence has 10th Business Day after the effect of:
12.1.6 increasing date a draft of the cost amendment is provided to the Advising Lender of agreeing Lenders, unless the Administrative Agent receives, on or before such 10th Business Day, a written notice from the Majority Lenders stating that such Lenders object to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing the amount such amendment. Selection of the Obligations;
12.1.8 directly or indirectly reducing replacement index, adjustments to the effective return applicable margins, and amendments to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than i) will be determined with due consideration to the then-current market practices for determining and implementing a reduction resulting rate of interest for newly originated loans in the United States, loans converted from a higher LIBOR-based rate to a replacement index-based rate and consistent with market practices in the market for collateralized loan obligations, and (ii) may also reflect adjustments, to the extent consistent with market practices in the collateralized loan obligations market, to account for (x) the effects of the transition from LIBOR to the replacement index and (y) yield- or risk-based differences between LIBOR and the replacement index. Any selection of the replacement index, adjustments to the applicable margins, and amendments to this Agreement will be after consultation and agreement of the Borrower, which agreement will not be unreasonably withheld or delayed. Until an amendment reflecting a new replacement index in accordance with this Section 11.1 is effective, each advance, conversion and renewal of a Loan will continue to bear interest with reference to LIBOR and if no such rate is provided, as set forth in the definition thereof, LIBOR for such Interest Period will be LIBOR in effect for the prior Interest Period; provided however if the parties have not executed an amendment within 30 days from the occurrence of the related LIBOR Transition Event, then instead of referring to LIBOR in effect for the prior Interest Period, LIBOR will be replaced with the single reference rate that is used in calculating the interest rate of income tax being imposed on the Advising Lender’s overall income or capital in highest percentage (by par amount) of the Floating Rate Obligations then held by the Borrower (which the Borrower shall (at the direction of the Services Provider) provide written evidence of to the Administrative Agent) plus the reference rate modifier (which shall include, as applicable, an adjustment to make such alternative reference rate the quarterly equivalent thereof). Notwithstanding anything to the contrary contained herein, if at any relevant jurisdiction); ortime the replacement index is less than zero, at such times, such index shall be deemed to be zero for purposes of this Agreement.
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Change in Circumstances. If Section 5.1 INCREASED COST AND REDUCED RETURN.
(a) INCREASED COST. If, after the date hereof the introduction of hereof, any Regulatory Change or any change in any Applicable Law relating to compliance by any Lender (or its Applicable Lending Office) with any request or directive (whether or not having the “Advising Lender”), or any change in the interpretation or application thereof by force of law) of any Governmental Authority, central bank, or comparable agency:
12.1.1 subjects the Advising (i) shall subject such Lender to(or its Applicable Lending Office) to any tax, duty, or causes the withdrawal or termination of a previously granted exemption other charge with respect toto any Libor Accounts, any Taxes its Notes, or changes its obligation to make Libor Accounts, or change the basis of taxation of payments due any amounts payable to the Advising such Lender (or increases its Applicable Lending Office) under this Agreement or its Notes in respect of any existing Taxes on payments of the Obligations Libor Accounts (other than Excluded Taxes franchise taxes or Taxes for which an amount was paid taxes imposed on or measured by the Borrower pursuant to Section 12.2net income of such Lender by the jurisdiction in which such Lender is organized, has its principal office or such Applicable Lending Office or is doing business);
12.1.2 imposes(ii) shall impose, modifies modify, or deems deem applicable any reserve, liquidity, cash margin, capital adequacy, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against (other than the Reserve Requirement utilized in the determination of the Adjusted Libor Rate) relating to any extensions of credit or other assets held by, or deposits in or for the account of, or loans byany deposits with or other liabilities or commitments of, such Lender (or any other acquisition its Applicable Lending Office), including the Commitments of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes on the Advising such Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes (iii) shall impose on such Lender (or its Applicable Lending Office) or the Advising Lender London interbank market any other condition or requirement with respect to affecting this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess its Notes or any of such requirements extensions of credit or conditions which were in effect on liabilities or commitments; and the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing the amount of the Obligations;
12.1.8 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions foregoing is to increase the cost to such Lender (or obligations contemplated its Applicable Lending Office) of making, Converting into, Continuing, or maintaining any Libor Accounts or to reduce any sum received or receivable by such Lender (or its Applicable Lending Office) under this Agreement or its Notes with respect to any Libor Accounts, then the Borrower shall pay to such Lender on demand such amount or amounts as will compensate such Lender for such increased cost or reduction. If any Lender requests compensation by the Borrower under this SECTION 5.1(a), the Borrower may, by notice to such Lender (other than with a reduction resulting from a higher rate copy to the Administrative Agent), suspend the obligation of income tax being imposed on such Lender to make or maintain Libor Accounts, or to Convert Base Rate Accounts into Libor Accounts, until the Advising Lender’s overall income event or capital condition giving rise to such request ceases to be in any relevant jurisdictioneffect (in which case the provisions of SECTION 5.4 shall be applicable); orPROVIDED that such suspension shall not affect the right of such Lender to receive the compensation so requested.
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Change in Circumstances. (a) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that, by reason of circumstances affecting the relevant market generally, deposits in Dollars (in the applicable amounts) are not being offered in the relevant market for such Interest Period, then the Administrative Agent shall forthwith give notice thereof to Borrower, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make the LIBOR Based Rate option available to Borrower shall be suspended for future advances and all amounts made available to Borrower by the Lenders hereunder to which such LIBOR Based Rate option then applies shall bear interest at the LIBOR Based Rate option for the remainder of the then applicable Interest Period and thereafter at the Base Rate option. Upon notification from the Administrative Agent to Borrower that the circumstances giving rise to the suspension no longer exist, the LIBOR Based Rate option shall again be available to Borrower in accordance with the terms of this Agreement.
(b) If, after the Closing Date, the introduction of, or any change in, any applicable law, rule or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof or compliance by a Lender with any request or directive (whether or not having the force of law) of any such authority shall make it unlawful or impossible for such Lender to make available to Borrower the LIBOR Based Rate option, such Lender shall forthwith give notice thereof to the Administrative Agent who shall forthwith transmit the same to Borrower. Upon receipt of such notice, all amounts owed by Borrower to such Lender then bearing interest at the LIBOR Based Rate option shall bear interest at the LIBOR Based Rate option for the remainder of the then applicable Interest Period and thereafter at the Base Rate option.
(c) (i) If after the date hereof Closing Date, the introduction of adoption of, or any change in, any applicable law, rule or regulation or in the interpretation or administration thereof by any Applicable Law relating Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by a Lender with any request or directive (whether or not having the force of law) made by any such authority, central bank or comparable agency after the Closing Date (each, a “Regulatory Change”):
(A) shall subject such Lender, to any tax, duty or other charge with respect to any portion of the Demand Line of Credit Loan then bearing interest at the LIBOR Based Rate option, or shall change the basis of taxation of payments to such Lender of the principal of or interest on any portion of the Demand Line of Credit Loan bearing interest at the LIBOR Based Rate option (except for changes in the “Advising rate of tax on the overall net income of such Lender”); or
(B) shall impose, modify or deem applicable any reserve (including any imposed by the Board of Governors of the Federal Reserve System), Reserve Percentage, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, such Lender, or shall impose on such Lender or on the United States market for certificates of deposit or the London interbank market any other condition affecting any portion of the Demand Line of Credit Loan bearing interest at the LIBOR Based Rate option; and the result of any of the foregoing is to increase the cost to such Lender of making available to Borrower the LIBOR Based Rate option with respect to any portion of the Demand Line of Credit Loan or to reduce the amount of any sum received or receivable by such Lender under this Loan Agreement or any Demand Line of Credit Note, by an amount deemed by such Lender to be material, then, upon demand by such Lender, through the Administrative Agent, Borrower agrees to pay to the Administrative Agent, for the account of such Lender within thirty (30) days of demand such additional amount or amounts as will compensate such Lender for such increased cost or reduction.
(ii) If after the Closing Date, a Lender shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, reserve requirements, taxes (except for changes in the rate of tax on the overall net income of such Lender) or other charges, or any change therein, or any change in the interpretation or application administration thereof by any Governmental Authority:
12.1.1 subjects , central bank or comparable agency charged with the Advising Lender tointerpretation or administration thereof, or causes the withdrawal compliance by such Lender with any request or termination of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2);
12.1.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, directive regarding capital adequacy, special depositreserve requirements, deposit insurance taxes (except for changes in the rate of tax on the overall net income of such Lender) or assessmentother charges (whether or not having the force of law) of any such authority, central bank or comparable agency (each, an “Other Change”), has or would have the effect of reducing the rate of return on such Lender’s capital as a consequence of its obligations hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s policies with respect to capital adequacy, reserve requirements, taxes and other charges) by an amount deemed by such Lender to be material, then from time to time, within thirty (30) days after demand by such Lender, through the Administrative Agent, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such reductions.
(iii) Each Lender shall promptly notify the Administrative Agent, which shall promptly notify Borrower, of any other regulatory event of which it has knowledge which will entitle such Lender to compensation pursuant to this Section 2.13(c). A certificate of such Lender setting forth the basis for determining such additional amount or similar requirement against assets held byamounts necessary to reasonably compensate such Lender shall be conclusive in the absence of manifest error. In determining such amount, such Lender may use any reasonable averaging and attribution methods. Notwithstanding the foregoing, no amount shall be payable by Borrower under this Section 2.13(c) with respect to any period in excess of 270 days prior to the date of any demand by the Administrative Agent unless the effect of a Regulatory Change or deposits Other Change is retroactive by its terms to a period prior to the date of the implementation of such Regulatory Change or Other Change, in which case any additional amount or amount shall be payable for the retroactive period but only if the Administrative Agent provides its written demand not later than 270 days after the implementation of such Regulatory Change or Other Change.
(d) Borrower shall pay to the Administrative Agent for the account ofof each applicable Lender, promptly upon the request by such Lender through the Administrative Agent, such amount or loans byamounts as shall be sufficient to compensate such Lender for any loss, cost or expense which such Lender determines is attributable to (x) the payment or prepayment of all or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion Demand Line of Credit Loan to which the LIBOR Based Rate option applies on a date other than the last day of the Credit Facilities;
12.1.4 imposes applicable Interest Period or (y) Borrower’s failure to draw down, in whole or in part, a LIBOR Loan requested under Section 2.1(b) or Borrower’s attempt to revoke a LIBOR Loan or (z) the conversion of the rate of interest on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation Demand Line of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing thereof from the LIBOR Based Rate to the Base Rate in accordance with Section 2.3(d) hereof. Without limiting the foregoing, such compensation shall include an amount equal to the excess, if any, of (i) the amount of interest which otherwise would have accrued on the Obligations;
12.1.8 directly principal amount so paid or indirectly reducing prepaid for the effective return period from the date of such payment or prepayment to the last day of the applicable Interest Period at the applicable rate of interest for the Demand Line of Credit Loan or portion thereof over (ii) the interest component of the amount such Lender would have bid in the London interbank market for Dollar deposits of leading banks in each case, in amounts comparable to such Advising Lender under this Agreement or on its overall capital principal amount and with maturities comparable to such period, as a result of entering into this Agreement or as a result of any determined by such Lender. The determination by the Administrative Agent of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate foregoing amount shall, in the absence of income tax being imposed on the Advising Lender’s overall income or capital in any relevant jurisdiction); ormanifest error, be conclusive and binding upon Borrower.
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Change in Circumstances. If after (a) In the date hereof event that there shall hereafter occur at any time during the introduction term of or any change in any Applicable Law relating to any Lender (the “Advising Lender”), or this Agreement any change in the Applicable Law or in the interpretation or application thereof by administration thereof, which shall (i) increase the cost of maintaining any Governmental Authority:
12.1.1 subjects reserve or special deposit against the Advising Lender toCommitment or the Loan, or causes the withdrawal or termination of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2);
12.1.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacy, special deposit, deposit insurance or assessment, or ii) increase any other regulatory cost of complying with any law, regulation or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to making or maintaining the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement Commitment or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on Loan, and the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing the amount of the Obligations;
12.1.8 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions foregoing, as determined by the Lenders, is to increase the cost to the Lenders by at least twenty-five basis points (25 bps), or to reduce the amount of any payment (whether of principal, interest or otherwise) receivable by the Lenders hereunder, or in the event that a law or regulation is passed or if the Bangko Sentral ng Pilipinas or other authorized government agency or instrumentality shall declare a moratorium on payments of foreign currency denominated obligations contemplated or any governmental imposition, foreign exchange law, regulation, policy, circular, memorandum, letter, order or other directive is issued, or any circumstance or event has occurred which has the effect of extending, rescheduling, adjusting or suspending payment in Dollars, or of restricting or delaying the ability of the Lenders to receive payment in Dollars, or of restricting or delaying the ability of the Borrower to source Dollars, whether the Loan is maturing or otherwise, then the Lenders shall notify the Borrower of the said fact in writing. The Borrower and the Lenders then shall discuss ways to address the situation including the option in re-denominating the obligation into Pesos without restructuring or amending the original repayment terms. Should the Parties fail to reach an agreement within thirty (30) days from receipt of notification by the Borrower, either Party has the option to terminate this Agreement Agreement. In case of a termination, the Borrower shall, within ten (other than 10) Banking Days, prepay the Loan in full, without premium or penalty, plus accrued interest thereon up to the date of prepayment, subject to the reimbursement of costs and expenses incurred pursuant to Section 4.01. It is understood and agreed that with respect to the provisions of this Section 3.02, a reduction resulting decision of Majority Lenders shall constitute the decision of the Lenders.
(b) In the event it shall become unlawful for the Lenders to honor their Commitment or to maintain the Borrowings, then the Commitment of the Lenders shall be cancelled and the Borrower shall, within thirty (30) days from receipt of notice from the Lenders (unless the Applicable Law or circumstance giving rise to such illegality requires a higher rate shorter period, in which case, within such shorter period provided in the Applicable Law), prepay the Borrowings in full, without premium or penalty, together with interest accrued thereon up to the date of income tax being imposed on prepayment, subject to reimbursement of costs and expenses incurred pursuant to Section 4.01. Upon the Advising Lender’s overall income or capital in occurrence of any relevant jurisdiction); orsuch event, the Lenders shall promptly notify and furnish the Borrower evidence of such illegality.
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Change in Circumstances. (a) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that, by reason of circumstances affecting the relevant market generally, deposits in Dollars (in the applicable amounts) are not being offered in the relevant market for such Interest Period, then the Administrative Agent shall forthwith give notice thereof to Borrower, whereupon until the Administrative Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to make the LIBOR Based Rate option available to Borrower shall be suspended for future advances and all amounts made available to Borrower by the Lenders hereunder to which such LIBOR Based Rate option then applies shall bear interest at the LIBOR Based Rate option for the remainder of the then applicable Interest Period and thereafter at the Base Rate option. Upon notification from the Administrative Agent to Borrower that the circumstances giving rise to the suspension no longer exist, the LIBOR Based Rate option shall again be available to Borrower in accordance with the terms of this Agreement.
(b) If, after the date hereof, the introduction of, or any change in, any applicable law, rule or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof or compliance by a Lender with any request or directive (whether or not having the force of law) of any such authority shall make it unlawful or impossible for such Lender to make available to Borrower the LIBOR Based Rate option, such Lender shall forthwith give notice thereof to the Administrative Agent who shall forthwith transmit the same to Borrower. Upon receipt of such notice, all amounts owed by Borrower to such Lender then bearing interest at the LIBOR Based Rate option shall bear interest at the LIBOR Based Rate option for the remainder of the then applicable Interest Period and thereafter at the Base Rate option.
(c) (i) If after the date hereof the introduction of or any change in any Applicable Law relating to any Lender (the “Advising Lender”)adoption of, or any change in, any applicable law, rule or regulation or in the interpretation or application administration thereof by any Governmental Authority:
12.1.1 subjects , central bank or comparable agency charged with the Advising Lender tointerpretation or administration thereof, or causes compliance by a Lender with any request or directive (whether or not having the withdrawal force of law) made by any such authority, central bank or termination of comparable agency after the date hereof (each, a previously granted exemption "Regulatory Change"):
(A) shall subject such Lender, to any tax, duty or other charge with respect toto any portion of the Revolving Credit Loan then bearing interest at the LIBOR Based Rate option, any Taxes or changes shall change the basis of taxation of payments due to the Advising such Lender or increases any existing Taxes on payments of the Obligations principal of or interest on any portion of the Revolving Credit Loan bearing interest at the LIBOR Based Rate option (other than Excluded Taxes except for changes in the rate of tax on the overall net income of such Lender); or
(B) shall impose, modify or Taxes for which an amount was paid deem applicable any reserve (including any imposed by the Borrower pursuant to Section 12.2Board of Governors of the Federal Reserve System);
12.1.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacyReserve Percentage, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held byof, or deposits in with or for the account of, or loans credit extended by, such Lender, or shall impose on such Lender or on the United States market for certificates of deposit or the London interbank market any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes condition affecting any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of Revolving Credit Loan bearing interest at the Credit Facilities;
12.1.4 imposes on LIBOR Based Rate option; and the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing the amount of the Obligations;
12.1.8 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions foregoing is to increase the cost to such Lender of making available to Borrower the LIBOR Based Rate option with respect to any portion of the Revolving Credit Loan or obligations contemplated to reduce the amount of any sum received or receivable by such Lender under this Loan Agreement or any Revolving Credit Note, by an amount deemed by such Lender to be material, then, upon demand by such Lender, through the Administrative Agent, Borrower agrees to pay to the Administrative Agent, for the account of such Lender within thirty (other than a reduction resulting from a higher rate 30) days of income tax being imposed on the Advising Lender’s overall income demand such additional amount or capital in any relevant jurisdiction); oramounts as will compensate such Lender for such increased cost or reduction.
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Change in Circumstances. If (a) Notwithstanding any other provision herein, if after the date hereof the introduction of or this Agreement any change in applicable law or regulation or in the interpretation or administration thereof by any Applicable Law relating to any Lender governmental authority charged with the interpretation or administration thereof (whether or not having the “Advising Lender”force of law), or any change in GAAP or regulatory accounting principles applicable to Lender, shall: (i) subject Lender (which shall for the interpretation purpose of this Section 2.10 include any lending office of Lender) to any charge, fee, deduction or application thereof by withholding of any Governmental Authority:
12.1.1 subjects the Advising Lender to, kind or causes the withdrawal or termination of a previously granted exemption to any tax with respect toto any amount paid or to be paid by Lender with respect to any Loans (other than (x) taxes imposed on the overall net income of Lender and (y) franchise taxes imposed on Lender, in either case by the jurisdiction in which Lender has its principal office or its lending office with respect to the Loans or any Taxes political subdivision or changes taxing authority of either thereof); (ii) change the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations principal of or interest on any Loan or otherwise hereunder (other than Excluded Taxes or Taxes for which an amount was paid taxes imposed on the overall net income of Lender by the Borrower pursuant to Section 12.2jurisdiction in which Lender has its principal office or by any political subdivision or taxing authority therein);
12.1.2 imposes; (iii) impose, modifies modify or deems deem applicable any reserve, liquidity, cash margin, capital adequacy, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held byof, or deposits in with or for the account of, or loans or loan commitments extended by, Lender; or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes (iv) impose on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes London interbank market any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to affecting this Agreement or the Credit Facilities (other than Excluded Taxes)Loans made by Lender; in each case in excess of such requirements or conditions which were in effect on and the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing the cost to the Advising Lender of agreeing to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing the amount of the Obligations;
12.1.8 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions foregoing shall be to increase the cost to Lender of making or obligations contemplated maintaining any Loan, or to reduce the amount of any payment (whether of principal, interest, fee, compensation or otherwise) receivable by this Agreement Lender or to require Lender to make any payment in respect of any Loan, then Borrowers shall pay to Lender, upon Lender's demand, such additional amount or amounts as will compensate Lender for such additional costs or reduction; provided, however, that such requirement may not imposed against Borrowers by Lender in a discriminatory manner vis-a-vis other Similarly Situated Borrowers.
(other than a b) A statement of Lender setting forth such amount or amounts, supported by calculations in reasonable detail, as shall be necessary to compensate Lender as specified in paragraph (a) shall be delivered to Borrowers and shall be conclusive absent manifest error. Borrowers shall pay Lender the amount shown as due on any such statement within ten (10) days after its receipt of the same.
(c) Failure on the part of Lender to demand compensation for any increased costs, reduction resulting from a higher in amounts received or receivable for any period or reduction in the rate of income tax being imposed return earned on Lender's capital, shall not constitute a waiver of Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in rate of return in such period. The protection under this Section 2.10 shall be available to Lender regardless of any possible contention of the Advising Lender’s overall income invalidity or capital inapplicability of any law, regulation or other condition which shall give rise to any demand by Lender for compensation. Borrowers' obligations under this Section 2.10 shall survive the repayment of the Loans and the expiration or termination of this Agreement; provided that any claims based thereon shall be made on or prior to the second anniversary of the repayment in any relevant jurisdiction); orfull of the Loans.
Appears in 1 contract
Samples: Credit Agreement (Rb Asset Inc)
Change in Circumstances. If after the date hereof the introduction of or any change in any Applicable Law relating to any a Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental AuthorityBody or compliance by a Lender with any request or direction of any Governmental Body:
12.1.1 3.8.1 subjects the Advising such Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, to any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations amounts owing to such Lender (other than than, in all instances, Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2Taxes);
12.1.2 3.8.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacycapital, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising such Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 3.8.3 imposes on the Advising such Lender or requires there to be maintained by the Advising such Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising such Lender’s allocation of capital resources to its obligations) in respect of the Advising Lendersuch Xxxxxx’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 3.8.4 imposes on the Advising such Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 3.8.5 increasing the cost to the Advising such Lender of agreeing to make or making, maintaining or funding the Credit FacilitiesFacility, any Advance, any Loan or any portion thereof;
12.1.7 3.8.6 reducing the amount of the ObligationsObligations owing to such Lender;
12.1.8 directly or indirectly 3.8.7 reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lendersuch Xxxxxx’s overall income or capital in connection with any relevant jurisdictionExcluded Tax); or
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Change in Circumstances. (a) If after the date hereof the introduction of or any change in any Applicable Law relating to any Lender (shall have determined that any Change in Law regarding capital adequacy has or would have the “Advising Lender”), or any change in effect of reducing the interpretation or application thereof by any Governmental Authority:
12.1.1 subjects the Advising Lender to, or causes the withdrawal or termination rate of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes return on payments of the Obligations (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2);
12.1.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacy, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising such Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes capital or on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising of such Lender’s allocation holding company, if any, as a consequence of capital resources to its obligations) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or the Credit Facilities Loans made by such Lender pursuant hereto to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (other than Excluded Taxes); in each case in excess taking into consideration such Lender’s policies and the policies of such requirements Lender’s holding company with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time the Borrower shall pay to such Lender such additional amount or conditions which were amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(b) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as applicable, as specified in effect paragraph (a) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(c) Failure or delay on the Initial Advance Date and part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such occurrence has Lender’s right to demand such compensation; provided that the effect of:
12.1.6 increasing the cost Borrower shall not be under any obligation to compensate any Lender under paragraph (a) above with respect to increased costs or reductions with respect to any period prior to the Advising date that is 120 days prior to such request if such Lender of agreeing knew or could reasonably have been expected to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing the amount know of the Obligations;
12.1.8 directly or indirectly reducing the effective return circumstances giving rise to such Advising Lender under this Agreement increased costs or on its overall capital as reductions and of the fact that such circumstances would result in a result claim for increased compensation by reason of entering into this Agreement such increased costs or as a result reductions; provided further that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within such 120-day period. The protection of this Section shall be available to each Lender regardless of any possible contention of the transactions invalidity or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate inapplicability of income tax being imposed on the Advising Lender’s overall income Change in Law that shall have occurred or capital in any relevant jurisdiction); orbeen imposed.
Appears in 1 contract
Samples: Unsecured Subordinated Credit Agreement (Atp Oil & Gas Corp)
Change in Circumstances. If 12.1 Increased costs Subject to Section 12.3, the Company shall, within three (3) Business Days after a demand by a Funding Agent or the Administrative Agent, pay (or procure payment) for the account of a Facility Indemnified Party any amount incurred if after the date hereof hereof, any Facility Indemnified Party or any of its Affiliates shall be charged any fee, expense or increased cost on account of the introduction adoption of any applicable law, rule or regulation (including any applicable law, rule or regulation regarding capital adequacy), any accounting principles or any change in any Applicable Law relating to any Lender (of the “Advising Lender”)foregoing, or any change in the interpretation or application administration thereof by the Financial Accounting Standards Board (“FASB”), any Governmental Authority:
12.1.1 subjects governmental authority, any central bank or any comparable agency charged with the Advising Lender tointerpretation or administration thereof, or causes compliance with any request or directive (whether or not having the withdrawal force of law) of any such authority or termination of a previously granted exemption agency: (i) that subjects Facility Indemnified Party to any charge or withholding on or with respect toto this Agreement or such Facility Indemnified Party’s obligations hereunder or any Program Support Provider to any charge or withholding on or with respect to any Program Support Agreement or a Program Support Provider’s obligations under a Program Support Agreement, any Taxes or on or with respect to the Receivables, or changes the basis of taxation of payments due to any Facility Indemnified Party of any amounts payable hereunder or any Program Support Provider of any amounts payable under any Program Support Agreement (except for changes in the Advising Lender rate of tax on the overall net income of an Facility Indemnified Party or increases any existing Taxes on payments of the Obligations taxes excluded by Section 11) or (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2);
12.1.2 ii) that imposes, modifies or deems applicable any reserve, liquidityassessment, cash margin, capital adequacyinsurance charge, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held byof, or deposits in with or for the account ofof a Facility Indemnified Party, or loans by, credit extended by a Facility Indemnified Party pursuant to this Agreement or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes on the Advising Lender a Program Support Provider pursuant to Program Support Agreement or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligationsiii) in respect of the Advising Lender’s obligations hereunder or that imposes any other condition or requirement with respect the result of which is to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing increase the cost to a Facility Indemnified Party of performing its obligations hereunder or to a Program Support Provider of performing its obligations under a Program Support Agreement, or to reduce the Advising Lender rate of agreeing return on a Facility Indemnified Party’s capital as a consequence of its obligations hereunder or a Program Support Provider’s capital as a consequence of its obligations under a Program Support Agreement, or to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing reduce the amount of the Obligations;
12.1.8 directly any sum received or indirectly reducing the effective return to such Advising Lender receivable by a Facility Indemnified Party under this Agreement or on its overall capital as a result of entering into this Program Support Provider under a Program Support Agreement or to require any payment calculated by reference to the amount of interests or loans held or interest received by it, then, upon demand by such Facility Indemnified Party, as a result of any of applicable, the transactions Company shall pay to such Facility Indemnified Party, such amounts charged to such Facility Indemnified Party or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lender’s overall income such amounts to otherwise compensate such Facility Indemnified Party for such increased cost or capital in any relevant jurisdiction); orsuch reduction.
Appears in 1 contract
Change in Circumstances. If after the date hereof the introduction of or any change in any Applicable Law relating to any a Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental AuthorityBody or compliance by a Lender with any request or direction of any Governmental Body:
12.1.1 3.8.1 subjects the Advising such Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, to any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations amounts owing to such Lender (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2Taxes);
12.1.2 3.8.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacycapital, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising such Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 3.8.3 imposes on the Advising such Lender or requires there to be maintained by the Advising such Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising such Lender’s allocation of capital resources to its obligations) in respect of the Advising such Lender’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 3.8.4 imposes on the Advising such Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 3.8.5 increasing the cost to the Advising such Lender of agreeing to make or making, maintaining or funding the Credit FacilitiesFacility, any Advance, any Loan or any portion thereof;
12.1.7 3.8.6 reducing the amount of the ObligationsObligations owing to such Lender;
12.1.8 3.8.7 directly or indirectly reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising such Lender’s overall income or capital in any relevant jurisdictionincome); or
Appears in 1 contract
Change in Circumstances. If after the date hereof the introduction of or any change in any Applicable Law relating to any a Lender (the “Advising Lender”), or any change in the interpretation or application thereof by any Governmental AuthorityBody or compliance by a Lender with any request or direction of any Governmental Body:
12.1.1 3.8.1 subjects the Advising such Lender to, or causes the withdrawal or termination of a previously granted exemption with respect to, to any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments of the Obligations amounts owing to such Lender (other than than, in all instances, Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2Taxes);
12.1.2 3.8.2 imposes, modifies or deems applicable any reserve, liquidity, cash margin, capital adequacycapital, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising such Lender;
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 3.8.3 imposes on the Advising such Lender or requires there to be maintained by the Advising such Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising such Lender’s allocation of capital resources to its obligations) in respect of the Advising Lendersuch Lxxxxx’s obligations hereunder or imposes any other condition or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 3.8.4 imposes on the Advising such Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes, but including any Taxes on or with respect to its loans, loan principal, letters of credit, commitments, or other obligations or its deposits, reserves, other liabilities or capital attributable thereto); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 3.8.5 increasing the cost to the Advising such Lender of agreeing to make or making, maintaining or funding the Credit FacilitiesFacility, any Advance, any Loan or any portion thereof;
12.1.7 3.8.6 reducing the amount of the ObligationsObligations owing to such Lender;
12.1.8 directly or indirectly 3.8.7 reducing the effective return to such Advising Lender under this Agreement or on its overall capital as a result of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lendersuch Lxxxxx’s overall income or capital in connection with any relevant jurisdictionExcluded Tax); or
Appears in 1 contract
Change in Circumstances. 3.1. Yield Protection If after the date hereof the introduction of any law or any change in any Applicable Law relating to any Lender governmental or quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the “Advising Lender”force of law), or any change in the interpretation or application thereof by any Governmental Authority:
12.1.1 subjects the Advising Lender tothereof, or causes the withdrawal compliance of any Lender therewith,
(i) subjects any Lender or termination any applicable Lending Installation to any tax, duty, charge or withholding on or from payments due from the Borrower (excluding any taxes imposed on, or based on, or determined by reference to the net income of a previously granted exemption with respect toany Lender or applicable Lending Installation, including, without limitation, franchise taxes, alternative minimum taxes and any Taxes branch profits tax (collectively, "Excluded Taxes")), or any taxes imposed on, or based on, or determined by reference to or changes the basis of taxation of payments to any Lender in respect of its Loans or other amounts due to the Advising Lender it hereunder (except for Excluded Taxes),
(ii) imposes or increases any existing Taxes on payments of the Obligations (other than Excluded Taxes or Taxes for which an amount was paid by the Borrower pursuant to Section 12.2);
12.1.2 imposes, modifies or deems applicable any reserve, liquidityassessment, cash margin, capital adequacyinsurance charge, special deposit, deposit insurance or assessment, or any other regulatory or similar requirement against assets held byof, or deposits in with or for the account of, or loans credit extended by, any Lender or any applicable Lending Installation (other acquisition of funds for loans bythan reserves and assessments taken into account in determining the interest rate applicable to Eurodollar Rates), the Advising Lender;or
12.1.3 imposes any Taxes on reserves in respect of the undrawn portion of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes on the Advising Lender or requires there to be maintained by the Advising Lender any capital adequacy or additional capital requirement (including, without limitation, a requirement which affects the Advising Lender’s allocation of capital resources to its obligationsiii) in respect of the Advising Lender’s obligations hereunder or imposes any other condition or requirement with respect the result of which is to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued by it hereunder; or
12.1.5 imposes on the Advising Lender any other condition or requirement with respect to this Agreement or the Credit Facilities (other than Excluded Taxes); in each case in excess of such requirements or conditions which were in effect on the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing increase the cost to the Advising any Lender or any applicable Lending Installation of agreeing making, funding or maintaining loans or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with loans, or requires any Lender or any applicable Lending Installation to make or making, maintaining or funding the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing payment calculated by reference to the amount of loans held or interest received by it, by an amount deemed material by such Lender, then, within 15 days of demand by such Lender, the Obligations;
12.1.8 directly Borrower shall pay such Lender that portion of such increased expense incurred or indirectly reducing reduction in an amount received which such Lender determines is attributable to making, funding and maintaining its Loans and its Commitment; provided, however, that the effective return Borrower shall not be required to increase any such amounts payable to any Lender (i) if such Lender fails to comply with the requirements of Section 2.19 hereof or (2) to the extent that such Lender determines, in its sole reasonable discretion, that it can, after notice from the Borrower, through reasonable efforts, eliminate or reduce the amount of tax liabilities payable (without additional costs or expenses unless the Borrower agrees to bear such costs or expenses) or other disadvantages or risks (economic or otherwise) to such Advising Lender under this Agreement or on its overall capital as the Agent. If any Lender receives a result of entering into this Agreement or as a result refund in respect of any tax for which such Lender has received payment from the Borrower hereunder, such Lender shall promptly notify the Borrower of such refund and such Lender shall repay the transactions amount of such refund to the Borrower, provided that the Borrower, upon the request of such Lender, agrees to return such refund (plus any penalties, interest or obligations contemplated other charges) to such Lender in the event such Lender is required to repay such refund. The determination as to whether any Lender has received a refund shall be made by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lender’s overall income or capital in any relevant jurisdiction); orsuch Lender and such determination shall be conclusive absent manifest error.
Appears in 1 contract
Change in Circumstances. 23.01 If after the date hereof the introduction of or by reason of:
(a) any change in any Applicable Law relating to any Lender (applicable law, regulation or regulatory requirements of the “Advising Lender”)Cayman Islands or Trinidad and Tobago, or any change in the interpretation or application or administration thereof by any Governmental Authority:
12.1.1 subjects a competent court, (including the Advising Lender to, or causes the withdrawal or termination imposition of a previously granted exemption with respect to, any Taxes or changes the basis of taxation of payments due to the Advising Lender or increases any existing Taxes on payments hereunder, other than Taxes on the overall net income of the Obligations Arranger); and/or
(other than Excluded Taxes b) compliance with any changes in applicable and binding law, regulation, treaty, official directive or Taxes for which an amount was paid by requirement (providing it has the Borrower pursuant to Section 12.2);
12.1.2 imposes, modifies or deems applicable force of law) of any reserve, liquidity, cash margin, capital adequacy, special deposit, deposit insurance or assessment, central bank or any governmental, monetary or other regulatory or similar requirement against assets held by, or deposits in or for the account of, or loans by, or any other acquisition of funds for loans by, the Advising Lender;
12.1.3 imposes any Taxes on reserves in respect authority of the undrawn portion Cayman Islands or Trinidad and Tobago with respect to solvency requirements, provision requirements, mandatory deposits, mandatory conversion or measures having similar effect including any type of the Advising Lender’s Rateable Portion of the Credit Facilities;
12.1.4 imposes on the Advising Lender liquidity or requires there to be maintained by the Advising Lender any capital adequacy controls or additional capital requirement (including, without limitation, a requirement other banking or monetary controls or requirements which affects the Advising Lender’s allocation of manner in which the Arranger allocates capital resources to its obligationsobligations under this Agreement:-
(i) in respect The Arranger incurs a cost as a result of the Advising Lender’s its having entered into and/or performing any of its respective obligations hereunder under this Agreement; or
(ii) The Arranger becomes liable to make any payment on or imposes calculated by reference to any other condition sum received or requirement with respect to the maintenance by the Advising Lender of a contingent liability with respect to the Advising Lender’s Bankers’ Acceptance issued receivable by it hereunder; or
12.1.5 imposes (iii) The Arranger’s Return on Solvency is decreased (Return on Solvency means the Arranger’s fee and income on the Advising Lender any other condition or requirement with respect Transaction divided by statutory capital requirements applicable to this Agreement or the Credit Facilities (other than Excluded TaxesArranger for the transaction); in each case in excess of such requirements or conditions which were in effect The Company shall from time to time on demand by the Initial Advance Date and such occurrence has the effect of:
12.1.6 increasing the cost Arranger promptly pay to the Advising Lender Arranger amounts sufficient to indemnify the Arranger against, as the case may be, such cost, increased cost or liability or reduction in the rate of agreeing Return on Solvency. The Company will not bear any increased costs or liability by reason of the Arranger’s inefficiency or poor performance of its operations.
23.02 The Arranger shall promptly notify the Company of the circumstances giving rise to the Company’s obligation to make any such payment, giving reasonable details of how such cost, increased cost, reduction or making, maintaining or funding liability has been calculated and attributed to the Credit Facilities, any Advance, any Loan or any portion thereof;
12.1.7 reducing advance of the principal amount of the Obligations;
12.1.8 directly or indirectly reducing Bonds, such calculation and attribution by the effective return to such Advising Lender under this Agreement or on its overall capital as a result Arranger being conclusive in the absence of entering into this Agreement or as a result of any of the transactions or obligations contemplated by this Agreement (other than a reduction resulting from a higher rate of income tax being imposed on the Advising Lender’s overall income or capital in any relevant jurisdiction); ormanifest error.
Appears in 1 contract
