Changes in Laws and Increased Costs of Loans. (a) If after the Escrow Release Date, either (i) with respect to Eurodollar Rate Loans, any change in, or in the interpretation of, any Law is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) with respect to Eurodollar Rate Loans, a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), (iii) or (iv) is an increase in the cost to any Lender of funding or maintaining the Loans, then Parent Borrower and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify such Lender, as the case may be, against such increased cost on an after-Tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to the Parent Borrower by Agent or the applicable Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 8 contracts

Samples: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Safeway Stores 42, Inc.)

Appears in 3 contracts

Samples: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (SSI - AK Holdings, Inc.)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including~~, without limitation~~, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any ~~central bank or other~~ Governmental Authority or (iii) a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such ~~authority, central bank or comparable agency~~Governmental Authority, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the ~~direct or indirect~~ effect of reducing the rate of return on any Lender’s or Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or Issuing Bank’s policies with respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender or Issuing Bank of funding or maintaining the Loans, the Letters of Credit or its Commitment (other than any increased cost resulting from (A) Taxes (as to which Section 6.5 and the limitations thereto shall govern) and any other taxes, or (B) changes in the basis of taxation of overall net income by the jurisdiction under the laws of which the Agent or such Lender is organized or in which the Agent’s or such Lender’s lending office is located or any political subdivision thereof), then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify such ~~Lender~~Lender or Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost and the calculation thereof, including reasonable supporting information, shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be ~~conclusive~~prima facie evidence, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (Vitamin Shoppe, Inc.), Loan and Security Agreement (Vitamin Shoppe, Inc.)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) with respect to Eurodollar ~~Rate~~ Loans, any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) with respect to Eurodollar ~~Rate~~ Loans, a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s or Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or Issuing Bank’s policies with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii~~), (iii~~) or (iviii) is an increase in the cost to any Lender or Issuing Bank of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify such ~~Lender~~Lender or Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve ~~requirements~~requirements (other than reserve requirements to the extent reflected in the Adjusted Eurodollar Rate as determined by Agent in good faith), applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to ~~time upon~~ time, no later than ten (10) Business Days following demand by ~~Agent~~ Agent, pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein~~ Failure or delay on the part of Agent to demand compensation pursuant to this Section 3.1(a) shall not constitute a waiver of Agent’s right to demand such compensation; provided, that, Borrowers and Guarantors shall not be required to compensate a Lender pursuant to this Section 3.1(a) for any increased costs incurred more than nine months prior to the ~~contrary~~date Agent notifies Administrative Borrower of such increased costs (except, ~~for all purposes under this Agreement (including Section 3.3(a))~~that, ~~(x)~~ if the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in ~~Law after~~ law or other event giving rise to such increased costs is retroactive, then the ~~Escrow Release Date, regardless~~ nine-month period referred to above shall be extended to include the period of ~~the date enacted, adopted or issued~~retroactive effect thereof). (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that ~~the~~ Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and to hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)

Appears in 2 contracts

Samples: Loan and Security Agreement (Hhgregg, Inc.), Loan and Security Agreement (HHG Distributing, LLC)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release~~ Effective Date, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit necessary to fund the Loans hereunder (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Administrative Agent pay to Administrative Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Lead Borrower by Administrative Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (Spartan Stores Inc), Loan and Security Agreement (Nash Finch Co)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Agent, any Lender or any banking or financial institution from whom any Agent or any Lender borrows funds or obtains credit (a “Funding Bank”)) other than any change in, or in the interpretation of any Tax and any Excluded Taxes, or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding ~~Bank~~ Bank, any Agent or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding ~~Bank~~ Bank, any Agent or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank~~ Bank, any Agent or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ such Agent’s or such Lender’s capital as a consequence of its obligations hereunder to a level below that which such Agent or such Lender could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s, such Agent’s or such Lender’s policies with respect to capital adequacy) by an amount deemed by such Agent or such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Agent or any Lender of funding or maintaining the Loans, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by ~~Agent~~ Administrative and Collateral Agent, for itself or the applicable Lender, pay to ~~Agent~~ Administrative and Collateral Agent, for itself or the applicable Lender, additional amounts sufficient to indemnify ~~such Lender, as~~ Agents or the ~~case may be,~~ applicable Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified), provided that such demand is made within 180 days of the incurrence of such loss, costs or expenses. A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Administrative and Collateral Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Administrative and Collateral Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Administrative and Collateral Agent ~~has received notice from the Required Lenders~~ determines that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Administrative and Collateral Agent and/or the Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Administrative and Collateral Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Administrative and Collateral Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent Borrower~~ Borrowers have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Administrative and Collateral Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Administrative and Collateral Agent ~~or such Lender~~ shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for Administrative and Collateral Agent and/or such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) Loans of such ~~Lender’s Loans~~ Lender then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to ~~such Lender~~ Administrative and Collateral Agent, for the benefit of the Lenders, such amounts, if any, as may be required pursuant to Section ~~3.3(d~~6.3(c) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify and hold harmless Administrative and Collateral Agent and each Lender ~~and hold Agent and each Lender harmless~~ from any loss or expense which Administrative and Collateral Agent or ~~such~~ any Lender may sustain or incur as a consequence of (i) default by ~~the Parent Borrower~~ Borrowers in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ Administrative Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent Borrower~~ Borrowers in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Administrative Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as reasonably determined by ~~such Agent or such Lender~~Administrative and Collateral Agent) which would have accrued to ~~Agent or such Lender~~ Lenders on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) ~~Any Agent~~ If any Borrower or any ~~Lender claiming compensation under this Section 3 shall deliver a certificate~~ Guarantor is required to ~~the Parent Borrower setting forth the~~ pay additional ~~amount or~~ amounts to ~~be paid~~ any Lender pursuant to ~~it hereunder which shall be conclusive in~~ Section 3.2(a) hereof that increase the ~~absence~~ effective lending rate of ~~manifest error. In determining such amount, such Agent or~~ such Lender ~~may use any reasonable averaging and attribution methods. (f) With~~ with respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower its share of the ~~event that gives rise~~ Loans to ~~such claim; provided that, if~~ greater than one-eighth (1/8%) percent in excess of the ~~circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include~~ percentage of the ~~period~~ effective lending rate of ~~retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c)~~the other Lenders, then such Lender ~~will~~shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office with respect to making Eurodollar Rate Loans so as to eliminate any such additional payment by Borrowers and Guarantors which may thereafter accrue, if ~~requested by~~ such change in the ~~Parent Borrower~~judgment of such Lender is not otherwise disadvantageous to such Lender. In the event that any one or more Lenders, ~~use commercially reasonable efforts~~ pursuant to ~~designate another Lending Office~~ Section 3.2(a) hereof, incur any increased costs (other than increased costs to the extent such increased costs are not a recurring cost) for which any ~~Loan affected~~ such Lender demands compensation pursuant to Section 3.2(a) hereof which increases the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders and such Lender has not mitigated such costs within sixty (60) days after receipt by such ~~event; provided~~ Lender from Administrative Borrower of a written notice that such ~~efforts are made on terms that~~Lender’s effective lending rate has so exceeded the effective lending rate of the other Lenders, then and in any such event, Borrowers may substitute another financial institution which is an Eligible Transferee acceptable to Administrative and Collateral Agent for such Lender to assume the ~~reasonable judgment~~ Revolving Loan Commitment of such Lender and to purchase the Loans of such Lender, ~~cause~~ without recourse to or warranty by, or expense to, such Lender for a purchase price equal to the outstanding principal amount of the Loans owing to such Lender plus any accrued but unpaid interest on such Loans and ~~its Lending Office(s~~accrued but unpaid fees and other amounts in respect of such Lender’s Revolving Loan Commitment and share of the Loans (other than any prepayment penalty or other premiums). Upon such purchase such Lender shall no longer be a party hereto or have any rights or benefits hereunder (except for rights or benefits that such Lender would retain hereunder and under the other Financing Agreements upon payment in full of all of the Obligations) and the replacement Lender shall succeed to ~~suffer no material economic, legal or regulatory disadvantage~~the rights and benefits, and ~~provided~~shall assume the obligations, ~~further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights~~ of such replaced Lender ~~pursuant~~ hereunder and thereunder. Administrative and Collateral Agent and Lenders shall cooperate with Borrowers to ~~Section 3.3(a), (b)~~ amend the Financing Agreements to reflect such substitution. In no event may Borrowers replace a Lender that is also an Agent or ~~(c)~~an issuer of a Letter of Credit Accommodation.

Appears in 2 contracts

Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)

Appears in 2 contracts

Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (WHX Corp), Loan and Security Agreement (Atlas Air Worldwide Holdings Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or such Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or its Total Commitment (other than any increased cost resulting from (1) Taxes (as to which Section 6.4(d) hereof and the limitations thereto shall govern) or (2) changes in the basis of taxation of overall net income by the jurisdiction under the laws of which the Agent or such Lender is organized or in which the Agent’s or such Lender’s lending office is located or any political subdivision thereof), then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased ~~cost on an after-Tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified)~~cost. A certificate as to the amount of such increased cost shall be submitted to ~~the Parent Borrower~~ Borrowers by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent or the Required Lenders shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give ~~telecopy or telephonic~~ notice thereof to ~~the Parent Borrower~~ Borrowers either by telephone or in writing sent by telecopy and Lenders as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent Borrower~~ Borrowers when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent Borrower~~ Borrowers have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent Borrower~~ Borrowers and Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent~~ Each Borrower and ~~Guarantors~~ Guarantor shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ any Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ any Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by ~~such~~ Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit necessary to fund the Loans hereunder (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Lead Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (Spartan Stores Inc), Loan and Security Agreement (Spartan Stores Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (Atlantic Paratrans of Arizona, Inc.), Loan and Security Agreement (Atlantic Express Transportation Corp)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable ~~agency~~agency (provided, that, notwithstanding anything herein to the contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a change in Law under this clause (iii), regardless of the date enacted, adopted or issued), and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) ~~Agent~~ Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) ~~Agent has received notice from the Required Lenders that~~ the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to ~~Lenders~~ Lender of making or maintaining Eurodollar Rate Loans during such Interest Period, ~~Agent~~ or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Lender shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by ~~Agent~~Lender, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for ~~Agent or any~~ Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) ~~Agent or such~~ Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of ~~such~~ Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for ~~such~~ Lender to make or maintain Eurodollar Rate Loans, ~~such~~ Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) ~~such~~ Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent~~ Borrower ~~and Guarantors~~ shall pay to ~~such~~ Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent~~ Borrower ~~and Guarantors~~ shall indemnify ~~Agent and each~~ Lender and to hold ~~Agent and each~~ Lender harmless from any loss or expense which ~~Agent or such~~ Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by ~~such Agent or such~~ Lender) which would have accrued to ~~Agent or such~~ Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (Vector Group LTD), Loan and Security Agreement (Vector Group LTD)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank determines in good faith and in the exercise of its reasonable business judgment that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s or Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or Issuing Bank’s policies with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank in good faith and in the exercise of its reasonable business judgment to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender or Issuing Bank of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify such ~~Lender~~Lender or Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). ~~A certificate as~~ Agent or the applicable Lender shall certify to Borrower in writing the amount of such increased ~~cost shall be submitted to the Parent Borrower by Agent or the applicable Lender and~~ cost, which certification shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 2 contracts

Samples: Loan and Security Agreement (Pacific Ethanol, Inc.), Loan and Security Agreement (Pacific Ethanol, Inc.)

Appears in 1 contract

Samples: Loan and Security Agreement (Natrol Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and ~~Guarantors~~ Guarantor shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) as to Loans, Letter of Credit Accommodations and its Commitment (but not as to loans, letter of credit accommodations or commitments to other borrowers from such Lenders). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and ~~Guarantors~~Guarantor) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s 's Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and ~~Guarantors~~ Guarantor shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and ~~Guarantors~~ Guarantor shall indemnify Agent and each Lender and to hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Pemstar Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines in good faith that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loan, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify such ~~Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (C&d Technologies Inc)

Changes in Laws and Increased Costs of Loans. (a) If Except as provided in Section 3.4 hereof, if after the ~~Escrow Release~~ Effective Date, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or such Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased ~~cost~~ cost, setting forth in reasonable detail the calculation of such cost, shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein~~ Failure or delay on the part of the Agent or 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 Lender’s right to demand such compensation; provided, that, Borrowers shall not be under any obligation to compensate any Lender under this Section 3.3(a) with respect to increased costs with respect to any period prior to the ~~contrary~~date that is three (3) months prior to such request if such Lender knew or should have known of the circumstances giving rise to such increased costs and of the fact that such circumstances would in fact result in a claim for increased compensation by reason of such increased costs; provided, ~~for all purposes under this Agreement (including Section 3.3(a))~~further, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlementsthat, the ~~Basel Committee on Banking Supervision (or~~ foregoing limitation shall not apply to any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless increased costs arising out of the ~~date enacted~~retroactive application of any law, ~~adopted~~ regulation, rule, guideline or ~~issued~~directive as aforesaid within such three-month period. (b) If prior to the first day of any Interest Period, (i) Agent or any Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, ~~and will also give~~ which notice shall be withdrawn by prompt ~~written~~ telecopy or telephonic notice to ~~the Parent~~ Administrative Borrower by Agent when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release~~ Effective Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower and Guarantors~~ Borrowers shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) ~~Any Agent or any~~ Each Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided agrees that, if upon the ~~circumstance~~ occurrence of any event giving rise to ~~such claim is retroactive, then such 180-day period referred to above shall be extended to include~~ the ~~period~~ operation of ~~retroactive effect thereof. (g) If any Lender requests compensation under~~ Section 3.3(a~~), (b~~) or ~~(c)~~3.3(c) with respect to such Lender, ~~then such Lender~~ it will, if requested by the ~~Parent Borrower~~Borrowers, use ~~commercially~~ reasonable efforts (subject to overall policy considerations of such Lender) to designate another ~~Lending Office~~ lending office for any ~~Loan~~ Loans affected by such event with the object of avoiding the consequences of such event; ~~provided that~~ provided, that, such ~~efforts are~~ designation is made on terms that, in the ~~reasonable~~ sole judgment of such Lender, cause such Lender and its ~~Lending Office(s~~lending office(s) to suffer no ~~material~~ economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section ~~3.3(g~~3.3(e) shall affect or postpone any of the ~~Obligations~~ obligations of the ~~Parent Borrower~~ Borrowers or the rights of ~~such~~ any Lender pursuant to Section 3.3(a) or 3.3(c). (f) Upon the receipt by the Borrowers from Agent of a claim by any Lender (an “Affected Lender”) under Section 3.3(a), the Borrowers may: (i) request one or more of the other Lenders to acquire and assume all or part of such Affected Lender’s Commitment; or (ii) replace such Affected Lender by designating another Eligible Transferee that is willing to acquire such Loans and assume such Commitments; provided, that, (A) such replacement does not conflict with any requirement of law, (B) no Event of Default shall have occurred and be continuing at the time of such replacement, (C) the Borrowers shall repay (or the replacement bank or institution shall purchase, at par) all Loans, accrued interest and other amounts owing to such replaced Lender prior to the date of replacement, (D) the Borrowers shall be liable to such replaced Lender under Section 3.3(d) if any Eurodollar Rate Loan owing to such replaced Lender shall be prepaid (or purchased) other than on the last day of the Interest Period relating thereto, (E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 13.6 (provided that the Borrowers or the replacement Lender shall be obligated to pay any registration and processing fee), (bF) the Borrowers shall pay any additional fees required by such replacement Lender as an inducement for such replacement Lender to become a party hereto and (G) the Borrowers shall pay all additional amounts (if any) required pursuant to Section 3.3(a) to the extent such additional amounts were incurred on or ~~(c)~~prior to the consummation of such replacement.

Appears in 1 contract

Samples: Loan and Security Agreement (Delco Remy International Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Stein Mart Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) ~~Agent~~ Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) ~~Agent has received notice from the Required Lenders~~ Lender determines that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to ~~Lenders~~ Lender of making or maintaining Eurodollar Rate Loans during such Interest Period, ~~Agent~~ or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the applicable Eurodollar market, Lender shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by ~~Agent~~Lender, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for ~~Agent or any~~ Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Loan Agreement, (i) ~~Agent or such~~ Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of ~~such~~ Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for ~~such~~ Lender to make or maintain Eurodollar Rate Loans, ~~such~~ Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) ~~such Lender’s~~ Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent~~ Borrower ~~and Guarantors~~ shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent~~ Borrower ~~and Guarantors~~ shall indemnify ~~Agent and each~~ Lender and to hold ~~Agent and each~~ Lender harmless from any loss or expense which ~~Agent or such~~ Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ Borrower has given a notice requesting the same in accordance with the provisions of this Loan Agreement, provided, that, Borrower shall not be required to so indemnify Lender if the sole reason that Borrower failed to make a borrowing of, or convert or extend, a Eurodollar Rate Loan is as the result of the establishment of a new category of Reserve by Lender that results in such Loan not being available based on the Borrowing Base as in effect after giving effect to such new category of Reserve, (ii) default by ~~the Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as reasonably determined by ~~such Agent or~~ such Lender) which would have accrued to ~~Agent or such~~ Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Hirsch International Corp)

Appears in 1 contract

Samples: Loan and Security Agreement (Reptron Electronics Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the Revolving Loans, the Letters of Credit or the Commitment, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Five Below, Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change (other than any change by way of imposition of an increase in reserve requirements included in the calculation of Adjusted Eurodollar Rate) in, or in the interpretation of, any ~~Law~~ law or regulation is ~~introduced~~implemented, including, without limitation, with respect to capital adequacy, reserve requirements or similar requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future ~~guideline~~ directive or request with respect to capital adequacy, reserve requirements or similar requirements from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s =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 the Funding Bank’s =s or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time within fifteen (15) days after notice (which notice shall not be effective unless delivered within thirty (30) days after such Lender has begun to incur such costs) and upon demand by Agent pay to Agent for the benefit of the affected Lenders additional amounts sufficient to indemnify such ~~Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate stating the basis for such demand and showing in reasonable detail the calculation as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be ~~canceled~~ suspended and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s =s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this ~~Agreement, and~~ Agreement or (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) ~~Any Agent or any Lender claiming compensation under this Section 3 shall deliver~~ If a ~~certificate~~ Borrower is required to ~~the Parent Borrower setting forth the~~ pay additional ~~amount or~~ amounts to ~~be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use~~ any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a)) that increase the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders, then such Lender shall use reasonable efforts (bconsistent with legal and regulatory restrictions) to change the jurisdiction of its lending office with respect to making Eurodollar Rate Loans so as to eliminate any such additional payment by any Borrower which may thereafter accrue, if such change in the judgment of such Lender is not otherwise disadvantageous to such Lender. In the event that any one or more Lenders, pursuant to Section 3.3(a) hereof, incur any increased costs (c)other than increased costs to the extent such increased costs are not a recurring cost) for which any such Lender demands compensation pursuant to Section 3.3(a) hereof which increases the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders and such Lender has not mitigated such costs within sixty (60) days after receipt by such Lender from Administrative Borrower of a written notice that such Lender=s effective lending rate has so exceeded the effective lending rate of the other Lenders, then and in any such event, Borrowers may substitute another financial institution which is an Eligible Transferee acceptable to Agent for such Lender to assume the Commitment of such Lender and to purchase the Loans of such Lender hereunder, without recourse to or warranty by, or expense to, such Lender for a purchase price equal to the outstanding principal amount of the Loans owing to such Lender plus any accrued but unpaid interest on such Loans and accrued but unpaid fees and other amounts in respect of such Lender=s Commitment and share of the Loans. Upon such purchase such Lender shall no longer be a party hereto or have any rights or benefits hereunder (except for rights or benefits that such Lender would retain hereunder and under the other Financing Agreements upon payment in full of all of the Obligations other than as to any early termination fee) and the replacement Lender shall succeed to the rights and benefits, and shall assume the obligations, of such Lender hereunder and thereunder. Agent and Lenders shall cooperate with Borrowers to amend the Financing Agreements to reflect such substitution. In no event may Borrowers replace a Lender that is also Agent or an issuer of an outstanding Letter of Credit Accommodation.

Appears in 1 contract

Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) ~~Agent~~ Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) ~~Agent has received notice from the Required Lenders~~ Lender determines that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to ~~Lenders~~ Lender of making or maintaining Eurodollar Rate Loans during such Interest Period, ~~Agent~~ or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Lender shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by ~~Agent~~Lender, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for ~~Agent or any~~ Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) ~~Agent or such~~ Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of ~~such~~ Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for ~~such~~ Lender to make or maintain Eurodollar Rate Loans, ~~such~~ Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) ~~such Lender’s~~ Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent~~ Borrower ~~and Guarantors~~ shall pay to such Lender such amounts, if any, as may be required pursuant to Section ~~3.3(d~~3.5(d) below. (d) ~~Parent~~ Borrower ~~and Guarantors~~ shall indemnify ~~Agent and each~~ Lender and to hold ~~Agent and each~~ Lender harmless from any loss or expense which ~~Agent or such~~ Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as reasonably determined by ~~such Agent or~~ such Lender) which would have accrued to ~~Agent or such~~ Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) ~~Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate~~ The third sentence of Subsection 6.4(a) is amended and restated in its entirety to read as follows: Notwithstanding anything to the ~~Parent~~ contrary contained in this Agreement, (i) unless so directed by Borrower, or unless a Default or an Event of Default shall exist or have occurred and be continuing, Lender shall not apply any payments which it receives to any Eurodollar Rate Loans, except (A) on the expiration date of the Interest Period applicable to any such Eurodollar Rate Loans, or (B) in the event that there are no outstanding Prime Rate Loans and (ii) to the extent Borrower ~~setting forth~~ uses any proceeds of the ~~additional amount~~ Loans or ~~amounts~~ Letter of Credit Accommodations to ~~be paid~~ acquire rights in or the use of any Collateral or to ~~it hereunder which~~ repay any Indebtedness used to acquire rights in or the use of any Collateral, payments in respect of the Obligations shall be ~~conclusive~~ deemed applied first to the Obligations arising from Loans and Letter of Credit Accommodations that were not used for such purposes and second to the Obligations arising from Loans and Letters of Credit Accommodations the proceeds of which were used to acquire rights in or the use of any Collateral in the ~~absence~~ chronological order in which Borrower acquired such rights in or the use of ~~manifest error. In determining~~ such ~~amount, such Agent or such Lender may use any reasonable averaging and attribution methods~~Collateral. (f) ~~With respect~~ Section 9.17 is amended and restated in its entirety to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).read as follows:

Appears in 1 contract

Samples: Loan and Security Agreement (Streicher Mobile Fueling Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent Borrower~~ Borrowers and ~~Guarantors~~ Aftermarket Entities shall from time to time ~~upon~~ promptly following demand by Agent pay to Agent additional amounts sufficient to indemnify such ~~Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest ~~Period~~Period or any other day or applicable period, or (ii) Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate (A) determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest ~~Period~~Period or (B) applicable with respect to the Term B Loan will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans with respect to the Term B Loan during any applicable period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period or any other period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period or month, as applicable, shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period ~~thereof~~thereof (or immediately, in the case of Term B Loans), to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested or, as applicable, maintain Prime Rate Loans and (iii) such Lender’s 's Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods (or immediately in the case of Term B Loan) with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan (not constituting the Term B Loan) occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Proliance International, Inc.)

Changes in Laws and Increased Costs of Loans. (a) If Except as provided in Section 3.4 hereof, if after the ~~Escrow Release~~ Effective Date, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or such Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased ~~cost~~ cost, setting forth in reasonable detail the calculation of such cost, shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein~~ Failure or delay on the part of the Agent or 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 Lender's right to demand such compensation; provided, that, Borrowers shall not be under any obligation to compensate any Lender under this Section 3.3(a) with respect to increased costs with respect to any period prior to the ~~contrary~~date that is three (3) months prior to such request if such Lender knew or should have known of the circumstances giving rise to such increased costs and of the fact that such circumstances would in fact result in a claim for increased compensation by reason of such increased costs; provided, ~~for all purposes under this Agreement (including Section 3.3(a))~~further, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlementsthat, the ~~Basel Committee on Banking Supervision (or~~ foregoing limitation shall not apply to any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless increased costs arising out of the ~~date enacted~~retroactive application of any law, ~~adopted~~ regulation, rule, guideline or ~~issued~~directive as aforesaid within such three-month period. (b) If prior to the first day of any Interest Period, (i) Agent or any Revolving Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Revolving Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Revolving Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, ~~and will also give~~ which notice shall be withdrawn by prompt ~~written~~ telecopy or telephonic notice to ~~the Parent~~ Administrative Borrower by Agent when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Revolving Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release~~ Effective Date shall make it unlawful for Agent or any Revolving Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Revolving Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Revolving Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Revolving Lender to make or maintain Eurodollar Rate Loans, such Revolving Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Revolving Lender’s 's Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Revolving Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Revolving Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower and Guarantors~~ Borrowers shall indemnify Agent and each Revolving Lender and hold Agent and each Revolving Lender harmless from any loss or expense which Agent or such Revolving Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Revolving Lender) which would have accrued to Agent or such Revolving Lender on such amount by placing such Revolving amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) ~~Any Agent or any~~ Each Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided agrees that, if upon the ~~circumstance~~ occurrence of any event giving rise to ~~such claim is retroactive, then such 180-day period referred to above shall be extended to include~~ the ~~period~~ operation of ~~retroactive effect thereof. (g) If any Lender requests compensation under~~ Section 3.3(a~~), (b~~) or ~~(c)~~3.3(c) with respect to such Lender, ~~then such Lender~~ it will, if requested by the ~~Parent Borrower~~Borrowers, use ~~commercially~~ reasonable efforts (subject to overall policy considerations of such Lender) to designate another ~~Lending Office~~ lending office for any ~~Loan~~ Loans affected by such event with the object of avoiding the consequences of such event; ~~provided that~~ provided, that, such ~~efforts are~~ designation is made on terms that, in the ~~reasonable~~ sole judgment of such Lender, cause such Lender and its ~~Lending Office(s~~lending office(s) to suffer no ~~material~~ economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section ~~3.3(g~~3.3(e) shall affect or postpone any of the ~~Obligations~~ obligations of the ~~Parent Borrower~~ Borrowers or the rights of ~~such~~ any Lender pursuant to Section 3.3(a) or 3.3(c). (f) Upon the receipt by the Borrowers from Agent of a claim by any Lender (an "Affected Lender") under Section 3.3(a), the Borrowers may: (i) request one or more of the other Lenders to acquire and assume all or part of such Affected Lender's Commitment; or (ii) replace such Affected Lender by designating another Eligible Transferee that is willing to acquire such Loans and assume such Commitments; provided, that, (A) such replacement does not conflict with any requirement of law, (B) no Event of Default shall have occurred and be continuing at the time of such replacement, (C) the Borrowers shall repay (or the replacement bank or institution shall purchase, at par) all Loans, accrued interest and other amounts owing to such replaced Lender prior to the date of replacement, (D) the Borrowers shall be liable to such replaced Lender under Section 3.3(d) if any Eurodollar Rate Loan owing to such replaced Lender shall be prepaid (or purchased) other than on the last day of the Interest Period relating thereto, (E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 13.6 (provided that the Borrowers or the replacement Lender shall be obligated to pay any registration and processing fee), (bF) or the Borrowers shall pay any additional fees required by such replacement Lender as an inducement for such replacement Lender to become a party hereto and (~~c).~~G) the Borrowers shall pay all additional amounts (if any) required 51

Appears in 1 contract

Samples: Loan and Security Agreement (Delco Remy International Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Vector Group LTD)

Changes in Laws and Increased Costs of Loans. (a) If If, after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s or Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or Issuing Bank’s policies with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender or Issuing Bank of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time ~~upon demand by Agent~~ pay to Agent promptly (but in any event within five (5) Business Days) following Agent’s written demand therefor such additional amounts sufficient to indemnify such ~~Lender~~Lender or Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost and the basis for such determination shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined reasonably and in good faith (~~which~~ such determination ~~shall~~ to be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn promptly whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower and Guarantors~~ Borrowers shall indemnify Agent and each Lender and to hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. Such amounts shall be payable promptly (but in any event within five (5) Business Days) following Agent’s written demand therefor. This covenant shall survive the termination ~~or non-renewal~~ of this Agreement and the payment of the Obligations. (e) ~~Any Agent~~ Failure or delay on the part of any Lender ~~claiming~~ or Issuing Bank to demand compensation ~~under~~ pursuant to the foregoing provisions of this Section 3 shall ~~deliver~~ not constitute a ~~certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence~~ waiver of ~~manifest error. In determining~~ such ~~amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any~~ Lender’s ~~claim for compensation under Section 3.3(a)~~or Issuing Bank’s right to demand such compensation, ~~(b) or (c), the Parent~~ provided that no Borrower shall ~~not~~ be required to compensate ~~such~~ a Lender or Issuing Bank pursuant to the foregoing provisions of this Section for any ~~amount~~ increased costs incurred or reductions suffered more than ~~one hundred and eighty (180) days~~ six months prior to the date that such Lender or Issuing Bank, as the case may be, notifies the ~~Parent~~ Administrative Borrower of the ~~event that gives~~ change giving rise to such ~~claim; provided~~ increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor (except that, if the ~~circumstance~~ change giving rise to such ~~claim~~ increased costs or reductions is retroactive, then ~~such 180-day~~ the six month period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Charming Shoppes Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Swank Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by Agent pay to Agent additional amounts without duplication, sufficient in the aggregate to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). Notwithstanding anything to the contrary contained in this Section 3.3(a), if any Lender fails to notify Borrower of any event that will entitle such Lender to indemnification under this Section 3.3(a) within ninety (90) days after the date such Lender obtains actual knowledge of such event, then such Lender shall not be entitled to indemnification from Borrower for such amounts arising prior to the date that is ninety (90) days before the date on which such Lender notifies Borrower of such event. A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by Agent ~~or the applicable Lender~~ and shall be ~~conclusive~~presumptive evidence of amounts due, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Aep Industries Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit necessary to fund the Loans hereunder (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Administrative Agent pay to Administrative Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Lead Borrower by Administrative Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Administrative Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Administrative Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Administrative Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Lead Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Lead Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Administrative Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Administrative Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Administrative Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Lead Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Administrative Agent and each Lender and to hold Administrative Agent and each Lender harmless from any loss or expense which Administrative Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ a Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Administrative Agent or such Lender) which would have accrued to Administrative Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) ~~Any~~ Borrowers and Guarantors shall be liable for any tax or penalties imposed on Administrative Agent or any Lender ~~claiming compensation under this Section 3 shall deliver~~ as a ~~certificate~~ result of the financing arrangements provided for herein and each Borrower and Guarantor agrees to indemnify and hold Administrative Agent harmless with respect to the ~~Parent~~ foregoing, and to repay to Administrative Agent, for the benefit of Lenders, on demand the amount thereof, and until paid by such Borrower ~~setting forth the additional~~ or Guarantor such amount ~~or amounts to be paid to it hereunder which~~ shall be ~~conclusive in~~ added and deemed part of the ~~absence~~ Loans, provided, that, nothing contained herein shall be construed to require any Borrower or Guarantor to pay any income, franchise or similar taxes imposed upon Lenders and attributable to any amounts charged or paid hereunder to Lenders. The foregoing indemnity shall survive the payment of ~~manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging~~ the Obligations and ~~attribution methods~~the termination of this Agreement. (f) ~~With respect~~ Each Lender requiring compensation pursuant to ~~any Lender’s claim for compensation under~~ Section 3.3(a), (b3.3(d) or ~~(c), the Parent Borrower~~ 3.3(e) shall ~~not be required to compensate such Lender for~~ notify Borrowers and Administrative Agent in writing of any ~~amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the~~ event ~~that gives rise to such claim; provided that, if the~~ or circumstance giving rise to such ~~claim~~ demand for compensation no later than ninety (90) days following the date upon which the Lender has actual knowledge of such event or circumstance, and Borrowers shall not be obligated to compensate a Lender for any such increased cost or reduction which is ~~retroactive, then~~ not covered in such ~~180-~~notice within such ninety (90) day ~~period referred~~ period. Any demand for compensation pursuant to ~~above~~ this Section 3.3 shall be ~~extended to include~~ in writing and shall state the ~~period of retroactive effect thereof~~amount due, if any, under Section 3.3(d) or 3.3(e) and shall set forth in reasonable detail the calculations upon which such Lender determined such amount. Such written demand shall be conclusive, absent manifest error. (g) If a Borrower is required to pay additional amounts to any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a) or Section 3.3(e) that increase the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders, then such Lender shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office with respect to making Eurodollar Rate Loans so as to eliminate any such additional payment by Borrowers which may thereafter accrue, if such change in the judgment of such Lender is not otherwise disadvantageous to such Lender. In the event that any one or more Lenders, pursuant to Section 3.3(a) or Section 3.3(e) hereof, incur any increased costs or taxes (other than increased costs to the extent such increased costs are not a recurring cost) for which any such Lender demands compensation pursuant to Section 3.3(a) or Section 3.3(e) hereof which increases the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other US Lenders and such Lender has not mitigated such costs within sixty (60) days after receipt by such Lender from Lead Borrower of a written notice that such Lender’s effective lending rate has so exceeded the effective lending rate of the other Lenders, then and in any such event, Lead Borrower may substitute another financial institution which is an Eligible Transferee acceptable to Administrative Agent for such Lender to assume the Commitment of such Lender and to purchase the Loans of such Lender hereunder, without recourse to or warranty by, or expense to, such Lender for a purchase price equal to the outstanding principal amount of the Loans owing to such Lender plus any accrued but unpaid interest on such Loans and accrued but unpaid fees and other amounts in respect of such Lender’s Commitment and share of the Loans (other than any early termination fee). Upon such purchase such Lender shall no longer be a party hereto or have any rights or benefits hereunder (except for rights or benefits that such Lender would retain hereunder and under the other Financing Agreements upon payment in full of all of the Obligations other than as to any early termination fee) and the replacement Lender shall succeed to the rights and benefits, and shall assume the obligations, of such Lender hereunder and thereunder. In no event may Lead Borrower replace a Lender that is also Administrative Agent or an issuer of a Letter of Credit Accommodation. (h) For purposes of this Section 3.3 and any other applicable provision of this Agreement, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection, the Basel Committee on Banking Supervision (or any successor or similar authority), ~~(b)~~ the Bank for International Settlements and all rules, regulations, orders, requests, guidelines or ~~(c)~~directives in connection therewith are deemed to have been enacted and become effective after the date of this Agreement.

Appears in 1 contract

Samples: Loan and Security Agreement (Spartan Stores Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding ~~Bank or~~ Bank, any Lender or the Issuing Bank determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank or~~ Bank, any Lender or the Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s or the Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or the Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or the Issuing Bank’s policies with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender or the Issuing Bank of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent Borrower and Guarantors~~ the Loan Parties shall from time to time upon demand by the Agent pay to the Agent additional amounts sufficient to indemnify such ~~Lender~~Lender or the Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to the ~~Parent Borrower~~ Company by the Agent or the applicable Lender and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein~~ For the avoidance of doubt, this Section is inapplicable to ~~the contrary~~Taxes, ~~for all purposes under this Agreement (including~~ which are governed by Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued6.5. (b) If prior to the first day of any Interest Period, (i) the Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~the Loan Parties) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the ~~Eurodollar~~ Adjusted Eurocurrency Rate for such Interest Period, or (ii) the Agent has received notice from the Required Lenders that the ~~Eurodollar~~ Adjusted Eurocurrency Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to the Lenders of making or maintaining ~~Eurodollar~~ Eurocurrency Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurocurrency Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, the Agent shall give telecopy or telephonic notice thereof to the ~~Parent Borrower~~ Company as soon as practicable thereafter, and will also give prompt written notice to the ~~Parent Borrower~~ Company when such conditions no longer exist. If such notice is given (A) any ~~Eurodollar~~ Eurocurrency Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as ~~Eurodollar~~ Eurocurrency Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding ~~Eurodollar~~ Eurocurrency Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by ~~Agent~~the Agent (which Agent agrees to do promptly when the circumstances giving rise to such notice no longer exist), no further ~~Eurodollar~~ Eurocurrency Rate Loans shall be made or continued as such, nor shall any Borrower (or the ~~Parent Borrower~~ Company on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to ~~Eurodollar~~ Eurocurrency Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for the Agent or any Lender to make or maintain ~~Eurodollar~~ Eurocurrency Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) the Agent or such Lender shall promptly give written notice of such circumstances to the ~~Parent Borrower~~ Company (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make ~~Eurodollar~~ Eurocurrency Rate Loans, continue ~~Eurodollar~~ Eurocurrency Rate Loans as such and convert ~~Base~~ Prime Rate Loans to ~~Eurodollar~~ Eurocurrency Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain ~~Eurodollar~~ Eurocurrency Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a ~~Eurodollar~~ Eurocurrency Rate Loan is requested and (iii) such Lender’s Loans then outstanding as ~~Eurodollar~~ Eurocurrency Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a ~~Eurodollar~~ Eurocurrency Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ the Loan Parties shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower and Guarantors~~ The Loan Parties shall indemnify the Agent and each Lender and to hold the Agent and each Lender harmless from any loss or expense which the Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of ~~Eurodollar~~ Eurocurrency Rate Loans after ~~Parent~~ such Borrower (or the Company on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a ~~Eurodollar~~ Eurocurrency Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of ~~Eurodollar~~ Eurocurrency Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to ~~Eurodollar~~ Eurocurrency Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such ~~Eurodollar~~ Eurocurrency Rate Loans provided for herein (~~excluding~~ calculated net of the ~~Applicable Margin~~portion of interest allocable to the interest rate spread applicable thereto as set forth in the definition of “Interest Rate”) over (B) the amount of interest (as determined by ~~such~~ the Agent or such Lender) which would have accrued to the Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank ~~Eurodollar~~ Eurocurrency market. This covenant shall survive the termination ~~or non-renewal~~ of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Abl Loan and Security Agreement (U.S. Silica Holdings, Inc.)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Handy & Harman Ltd.)

Appears in 1 contract

Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental ~~Authority~~ Authority, or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the Loans, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the basis and amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Value Financial Services, Inc.)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower Agent by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) ~~Agent~~ Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) ~~Agent has received notice from the Required Lenders~~ Lender determines that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to ~~Lenders~~ Lender of making or maintaining Eurodollar Rate Loans during such Interest Period, ~~Agent~~ or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Lender shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower Agent as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by ~~Agent~~Lender, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Borrower Agent on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for ~~Agent or any~~ Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) ~~Agent or such~~ Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of ~~such~~ Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for ~~such~~ Lender to make or maintain Eurodollar Rate Loans, ~~such~~ Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) ~~such Lender’s~~ Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify ~~Agent and each~~ Lender and hold ~~Agent and each~~ Lender harmless from any loss or expense which ~~Agent or such~~ Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Borrower Agent on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower (or Borrower Agent on behalf of such Borrower) has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as reasonably determined by ~~such Agent or~~ such Lender) which would have accrued to ~~Agent or such~~ Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Ico Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender in good faith to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letters of Credit, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost and showing in reasonable detail the computation thereof shall be submitted to ~~the Parent~~ Administrative Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Farmer Brothers Co)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding ~~Bank~~ Bank, any Lender or any ~~Lender~~ Issuing Bank determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank~~ Bank, any Lender or any ~~Lender~~ Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s or Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or Issuing Bank’s policies with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender or Issuing Bank of funding or maintaining the Loans, the Letters of Credit or its Credit-Linked Commitment, then ~~Parent Borrower and Guarantors~~ the Credit Parties shall from time to time upon demand by Administrative Agent pay to Administrative Agent additional amounts sufficient to indemnify such ~~Lender~~Lender or Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by Administrative Agent or the applicable Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Administrative Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~the Credit Parties) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Administrative Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Administrative Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Administrative Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the ~~Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Administrative Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Administrative Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ the Credit Parties shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower and Guarantors~~ The Credit Parties shall indemnify Administrative Agent and each Lender and to hold Administrative Agent and each Lender harmless from any loss or expense which Administrative Agent or such Lender may sustain or incur as a consequence of (i) default by the ~~Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the ~~Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ the Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Administrative Agent or such Lender) which would have accrued to Administrative Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination ~~or non-renewal~~ of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Newark Group, Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental ~~Authority~~ Authority, or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the Loans, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the basis and amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If ~~prior to the first day of any Interest Period,~~ (i) ~~Agent~~ Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the ~~Eurodollar Rate for such Interest Period~~LIBOR Rate, or (ii) ~~Agent has received notice from the Required Lenders~~ Lender determines that the ~~Eurodollar~~ LIBOR Rate determined or to be determined ~~for such Interest Period~~ will not adequately and fairly reflect the cost to ~~Lenders~~ Lender of making or maintaining ~~Eurodollar Rate~~ LIBOR Loans, or (iii) Dollar deposits in the principal amounts of the LIBOR Loans ~~during such Interest Period~~are not generally available in the London interbank market, ~~Agent~~ Lender shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is ~~given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans~~given, ~~(B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans~~ each outstanding LIBOR Loan shall be converted to ~~or continued as Base~~ a Prime Rate ~~Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans~~Loan. Until such notice has been withdrawn by ~~Agent~~Lender, no further ~~Eurodollar Rate~~ LIBOR Loans shall be ~~made or continued as such~~made, nor shall ~~the Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to ~~Eurodollar~~ LIBOR Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for ~~Agent or any~~ Lender to make or maintain ~~Eurodollar Rate~~ LIBOR Loans as contemplated by this ~~Agreement~~ Agreement, (i) ~~Agent or such~~ Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of ~~such~~ Lender hereunder to make ~~Eurodollar Rate Loans,~~ LIBOR Loans and continue ~~Eurodollar Rate~~ LIBOR Loans as such ~~and convert Base Rate~~ shall forthwith be canceled until such time as it shall no longer be unlawful for Lender to make or maintain LIBOR Loans The commitment of Lender hereunder to ~~Eurodollar Rate~~ make LIBOR Loans shall forthwith be ~~canceled~~ cancelled and, until such time as it shall no longer be unlawful for ~~such~~ Lender to make or maintain ~~Eurodollar Rate~~ LIBOR Loans, ~~such~~ Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a ~~Eurodollar Rate~~ LIBOR Loan is requested and ~~(iii) such Lender’s~~ Loans then outstanding as ~~Eurodollar Rate Loans, if any,~~ LIBOR Loans shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) belowLoans. (d) ~~Parent~~ Borrower ~~and Guarantors~~ shall indemnify ~~Agent and each~~ Lender and agrees to hold ~~Agent and each~~ Lender harmless from any loss or expense which ~~Agent or such~~ Lender may sustain ~~or incur~~ as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing ~~of,~~ of or conversion into ~~or extension of Eurodollar Rate~~ LIBOR Loans after ~~Parent~~ Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, and (ii) default by ~~the Parent~~ Borrower in making any prepayment of a ~~Eurodollar Rate~~ LIBOR Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination ~~or non-renewal~~ of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Findwhat Com Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). Notwithstanding anything to the contrary contained in this Section 3.3(a), if any Lender fails to notify Borrower of any event that will entitle such Lender to indemnification under this Section 3.3(a) within ninety (90) days after the date such Lender obtains actual knowledge of such event, then such Lender shall not be entitled to indemnification from Borrower for such amounts arising prior to the date that is ninety (90) days before the date on which such Lender notifies Borrower of such event. A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by Agent ~~or the applicable Lender~~ and shall be ~~conclusive~~presumptive evidence of amounts due, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower and Lenders as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Loan Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower and Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s 's Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent~~ Borrower ~~and Guarantors~~ shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent~~ Borrower ~~and Guarantors~~ shall indemnify Agent and each Lender and to hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur (other than through Agent's or such Lender's gross negligence or wilful misconduct) as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ Borrower has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Loan Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin) over~~ OVER (B) the amount of interest (as reasonably determined by ~~such~~ Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination ~~or non-renewal~~ of this Loan Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest errorIF BORROWER IS REQUIRED TO PAY ADDITIONAL AMOUNTS TO ANY LENDER PURSUANT TO SECTION 3.3(a) THAT INCREASE THE EFFECTIVE LENDING RATE OF SUCH LENDER WITH RESPECT TO ITS SHARE OF THE LOANS TO GREATER THAN ONE-EIGHTH (1/8%) PERCENT IN EXCESS OF THE PERCENTAGE OF THE EFFECTIVE LENDING RATE OF THE OTHER LENDERS, THEN SUCH LENDER SHALL USE REASONABLE EFFORTS (CONSISTENT WITH LEGAL AND REGULATORY RESTRICTIONS) TO CHANGE THE JURISDICTION OF ITS LENDING OFFICE WITH RESPECT TO MAKING EURODOLLAR RATE LOANS SO AS TO ELIMINATE ANY SUCH ADDITIONAL PAYMENT BY BORROWER WHICH MAY THEREAFTER ACCRUE, IF SUCH CHANGE IN THE JUDGMENT OF SUCH LENDER IS NOT OTHERWISE DISADVANTAGEOUS TO SUCH LENDER. ~~In determining such amount~~IN THE EVENT THAT ANY ONE OR MORE LENDERS, ~~such Agent or such Lender may use any reasonable averaging and attribution methods~~PURSUANT TO SECTION 3.3(a) HEREOF, INCUR ANY INCREASED COSTS (OTHER THAN INCREASED COSTS TO THE EXTENT SUCH INCREASED COSTS ARE NOT A RECURRING COST) FOR WHICH ANY SUCH LENDER DEMANDS COMPENSATION PURSUANT TO SECTION 3.3(a) HEREOF WHICH INCREASES THE EFFECTIVE LENDING RATE OF SUCH LENDER WITH RESPECT TO ITS SHARE OF THE LOANS TO GREATER THAN ONE-EIGHTH (1/8%) PERCENT IN EXCESS OF THE PERCENTAGE OF THE EFFECTIVE LENDING RATE OF THE OTHER LENDERS AND SUCH LENDER HAS NOT MITIGATED SUCH COSTS WITHIN SIXTY (60) DAYS AFTER RECEIPT BY SUCH LENDER FROM BORROWER OF A WRITTEN NOTICE THAT SUCH LENDER'S EFFECTIVE LENDING RATE HAS SO EXCEEDED THE EFFECTIVE LENDING RATE OF THE OTHER LENDERS, THEN AND IN ANY SUCH EVENT, BORROWER MAY SUBSTITUTE ANOTHER FINANCIAL INSTITUTION WHICH IS AN ELIGIBLE TRANSFEREE ACCEPTABLE TO AGENT FOR SUCH LENDER TO ASSUME THE COMMITMENT OF SUCH LENDER AND TO PURCHASE THE LOANS OF SUCH LENDER HEREUNDER, WITHOUT RECOURSE TO OR WARRANTY BY, OR EXPENSE TO, SUCH LENDER FOR A PURCHASE PRICE EQUAL TO THE OUTSTANDING PRINCIPAL AMOUNT OF THE LOANS OWING TO SUCH LENDER PLUS ANY ACCRUED BUT UNPAID INTEREST ON SUCH LOANS AND ACCRUED BUT UNPAID FEES AND OTHER AMOUNTS IN RESPECT OF SUCH LENDER'S COMMITMENT AND SHARE OF THE LOANS (OTHER THAN ANY PREPAYMENT PENALTY OR OTHER PREMIUMS). UPON SUCH PURCHASE SUCH LENDER SHALL NO LONGER BE A PARTY HERETO OR HAVE ANY RIGHTS OR BENEFITS HEREUNDER (EXCEPT FOR RIGHTS OR BENEFITS THAT SUCH LENDER WOULD RETAIN HEREUNDER AND UNDER THE OTHER FINANCING AGREEMENTS UPON PAYMENT IN FULL OF ALL OF THE OBLIGATIONS) AND THE REPLACEMENT LENDER SHALL SUCCEED TO THE RIGHTS AND BENEFITS, AND SHALL ASSUME THE OBLIGATIONS, OF SUCH LENDER HEREUNDER AND THEREUNDER. AGENT AND LENDERS SHALL COOPERATE WITH BORROWER TO AMEND THE FINANCING AGREEMENTS TO REFLECT SUCH SUBSTITUTION. IN NO EVENT MAY BORROWER REPLACE A LENDER THAT IS ALSO AGENT OR AN ISSUER OF A LETTER OF CREDIT ACCOMMODATION. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Aep Industries Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines in good faith that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed in good faith by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent (accompanied by a certificate of such Lender as to the amount of such increased costs) pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost ~~on an after-Tax basis~~ (~~after taking into account applicable deductions~~ other than with respect to any such increased costs relating to Taxes, the indemnification for which shall be governed by Sections 6.4(b) and ~~credits in respect of the amount indemnified~~6.11 hereof). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower Representative by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (International Wire Group Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Commerce Energy Group Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Revolving Loan Lender or any banking or financial institution from whom any Revolving Loan Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Revolving Loan Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Revolving Loan Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Revolving Loan Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Revolving Loan Lender’s capital as a consequence of its obligations hereunder to a level below that which ~~such~~ Revolving Loan Lender could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Revolving Loan Lender’s policies with respect to capital adequacy) by an amount deemed by such Revolving Loan Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Revolving Loan Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Revolving Loan Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) as to Loans, Letter of Credit Accommodations and its Commitment (but not as to loans, letter of credit accommodations or commitments to other borrowers from such Revolving Loan Lenders). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Revolving Loan Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Revolving Loan Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Revolving Loan Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Revolving Loan Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Revolving Loan Lender to make or maintain Eurodollar Rate Loans, such Revolving Loan Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Revolving Loan Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent~~ Borrower ~~and Guarantors~~ shall pay to such Revolving Loan Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent~~ Borrower ~~and Guarantors~~ shall indemnify Agent and each Revolving Loan Lender and to hold Agent and each Revolving Loan Lender harmless from any loss or expense which Agent or such Revolving Loan Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Revolving Loan Lender) which would have accrued to Agent or such Revolving Loan Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Pemstar Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Gsi Group Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified); provided, that, Borrowers shall have not liability for any such costs incurred more than one hundred eighty (180) days prior to such demand. A certificate as to the amount of such increased cost and showing the basis for calculation thereof in reasonable detail shall be submitted to ~~the Parent~~ a Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Doe Run Resources Corp)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by ~~Agent~~ Agent, pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Catalina Lighting Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letters of Credit, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified)) so long as such amounts have accrued on or after the day which is one hundred eighty (180) days prior to the date on which Lender first made a demand thereof. A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) ~~Agent~~ Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) ~~Agent has received notice from the Required Lenders~~ Lender determines that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to ~~Lenders~~ Lender of making or maintaining Eurodollar Rate Loans during such Interest Period, ~~Agent~~ or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Lender shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by ~~Agent~~Lender, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for ~~Agent or any~~ Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) ~~Agent or such~~ Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of ~~such~~ Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for ~~such~~ Lender to make or maintain Eurodollar Rate Loans, ~~such~~ Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) ~~such Lender’s~~ Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify ~~Agent and each~~ Lender and to hold ~~Agent and each~~ Lender harmless from any loss or expense which ~~Agent or such~~ Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such ~~Agent or such~~ Lender) which would have accrued to ~~Agent or such~~ Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Langer Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (J Crew Operating Corp)

Appears in 1 contract

Samples: Loan and Security Agreement (Anchor Glass Container Corp /New)

Appears in 1 contract

Samples: Loan and Security Agreement (Five Below, Inc)

Changes in Laws and Increased Costs of Loans. (a) If Except as provided in Section 3.4 hereof, if after the ~~Escrow Release~~ Effective Date, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or such Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time upon demand by ~~Agent~~ (x) Agent, pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Revolving Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) and (y) Term Loan Agent, pay to Term Loan Agent additional amounts sufficient to indemnify Term Lenders against such increased cost on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased ~~cost~~ cost, setting forth in reasonable detail the calculation of such cost, shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or ~~the applicable Lender~~ Term Loan Agent, as applicable, and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein~~ Failure or delay on the part of the Agent, Term Loan Agent or 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 Lender’s right to demand such compensation; provided, that, Borrowers shall not be under any obligation to compensate any Lender under this Section 3.3(a) with respect to increased costs with respect to any period prior to the ~~contrary~~date that is three (3) months prior to such request if such Lender knew or should have known of the circumstances giving rise to such increased costs and of the fact that such circumstances would in fact result in a claim for increased compensation by reason of such increased costs; provided, ~~for all purposes under this Agreement (including Section 3.3(a))~~further, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlementsthat, the ~~Basel Committee on Banking Supervision (or~~ foregoing limitation shall not apply to any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless increased costs arising out of the ~~date enacted~~retroactive application of any law, ~~adopted~~ regulation, rule, guideline or ~~issued~~directive as aforesaid within such three-month period. (b) If prior to the first day of any Interest Period, (i) Agent, Term Loan Agent or any Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Revolving Lenders or Term Loan Agent has received notice from the Required Term Lenders, as the case may be, that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent or Term Loan Agent, as the case may be, shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, ~~and will also give~~ which notice shall be withdrawn by prompt ~~written~~ telecopy or telephonic notice to Administrative Borrower by Agent or Term Loan Agent, as the ~~Parent Borrower~~ case may be, when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent or Term Loan Agent, as the case may be, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release~~ Effective Date shall make it unlawful for Agent, Term Loan Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent, Term Loan Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower and Guarantors~~ Borrowers shall indemnify Agent, Term Loan Agent and each Lender and hold Agent, Term Loan Agent and each Lender harmless from any loss or expense which Agent, Term Loan Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by ~~such~~ Agent, Term Loan Agent or such Lender) which would have accrued to Agent, Term Loan Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) ~~Any Agent or any~~ Each Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided agrees that, if upon the ~~circumstance~~ occurrence of any event giving rise to ~~such claim is retroactive, then such 180-day period referred to above shall be extended to include~~ the ~~period~~ operation of ~~retroactive effect thereof. (g) If any Lender requests compensation under~~ Section 3.3(a~~), (b~~) or ~~(c)~~3.3(c) with respect to such Lender, ~~then such Lender~~ it will, if requested by the ~~Parent Borrower~~Borrowers, use ~~commercially~~ reasonable efforts (subject to overall policy considerations of such Lender) to designate another ~~Lending Office~~ lending office for any ~~Loan~~ Loans affected by such event with the object of avoiding the consequences of such event; ~~provided that~~ provided, that, such ~~efforts are~~ designation is made on terms that, in the ~~reasonable~~ sole judgment of such Lender, cause such Lender and its ~~Lending Office(s~~lending office(s) to suffer no ~~material~~ economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section ~~3.3(g~~3.3(e) shall affect or postpone any of the ~~Obligations~~ obligations of the ~~Parent Borrower~~ Borrowers or the rights of ~~such~~ any Lender pursuant to Section 3.3(a) or 3.3(c). (f) Upon the receipt by the Borrowers from Agent or Term Loan Agent of a claim by any Lender (an “Affected Lender”) under Section 3.3(a), the Borrowers may: (i) request one or more of the other Lenders to acquire and assume all or part of such Affected Lender’s Commitment; or (ii) replace such Affected Lender by designating another Eligible Transferee that is willing to acquire such Loans and assume such Commitments; provided, that, (A) such replacement does not conflict with any requirement of law, (B) no Event of Default shall have occurred and be continuing at the time of such replacement, (C) the Borrowers shall repay (or the replacement bank or institution shall purchase, at par) all Loans, accrued interest and other amounts owing to such replaced Lender prior to the date of replacement, (D) the Borrowers shall be liable to such replaced Lender under Section 3.3(d) if any Eurodollar Rate Loan owing to such replaced Lender shall be prepaid (or purchased) other than on the last day of the Interest Period relating thereto, (E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 13.6 (provided that the Borrowers or the replacement Lender shall be obligated to pay any registration and processing fee), (bF) the Borrowers shall pay any additional fees required by such replacement Lender as an inducement for such replacement Lender to become a party hereto and (G) the Borrowers shall pay all additional amounts (if any) required pursuant to Section 3.3(a) to the extent such additional amounts were incurred on or (cprior to the consummation of such replacement. Notwithstanding the foregoing, in no event shall any Affected Lender be entitled to receive a prepayment fee under Section 13.1(d) upon the assignment of its Loans under this Section 3.3(f).

Appears in 1 contract

Samples: Loan and Security Agreement (Remy International, Inc.)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve ~~requirements~~requirements (other than reserve requirements to the extent reflected in the Adjusted Eurodollar Rate as determined by Agent in good faith), applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to ~~time upon~~ time, no later than ten (10) Business Days following demand by ~~Agent~~ Agent, pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein~~ Failure or delay on the part of Agent to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case demand compensation pursuant to ~~Basel III~~this Section 3.1(a) shall not constitute a waiver of Agent’s right to demand such compensation; provided, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate ~~such~~ a Lender pursuant to this Section 3.1(a) for any ~~amount~~ increased costs incurred more than ~~one hundred and eighty (180) days~~ six months prior to the date ~~that such Lender~~ Agent notifies ~~the Parent~~ Administrative Borrower of ~~the event that gives rise to~~ such ~~claim; provided~~ increased costs (except, that, if the ~~circumstance~~ change in law or other event giving rise to such ~~claim~~ increased costs is retroactive, then ~~such 180~~the six-~~day~~ month period referred to above shall be extended to include the period of retroactive effect thereof~~. (g) If any Lender requests compensation under Section 3.3(a~~). The Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, ~~(b)~~ the Basel Committee on Banking Supervision and all requests, rules, guidelines or ~~(c), then such Lender will, if requested by~~ directives promulgated thereunder or in connection therewith shall be deemed to have gone into effect after the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any date hereof regardless of the ~~Obligations of the Parent Borrower~~ date actually enacted, adopted, promulgated or ~~the rights of such Lender pursuant to Section 3.3(a), (b) or (c)~~issued.

Appears in 1 contract

Samples: Loan and Security Agreement (Travelcenters of America LLC)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the Fifth Amendment to Loan and Security Agreement interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein~~ In determining any additional amounts due from Borrower under this Section 3.6(a), Lender shall act reasonably and in good faith and will, to the ~~contrary~~extent that the increased costs, ~~for~~ reductions, or amounts received or receivable relate to the Lender’s or a Participant’s loans or commitments generally and are not specifically attributable to the Loans and commitments hereunder, use averaging and attribution methods which are reasonable and equitable and which cover all ~~purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform~~ such loans and ~~Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated~~ commitments by the ~~Bank~~ Lender or such Participant, as the case may be, whether or not the loan documentation for ~~International settlements,~~ such other loans and commitments permits the ~~Basel Committee on Banking Supervision (~~Lender or ~~any successor or similar authority) or the United States regulatory authorities, in each case pursuant~~ such Participant to ~~Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless~~ receive compensation costs of the ~~date enacted, adopted or issued~~type described in this Section 3.6(a). (b) If prior to the first day of any Interest Period, (i) ~~Agent~~ Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) ~~Agent has received notice from the Required Lenders~~ Lender determines that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to ~~Lenders~~ Lender of making or maintaining Eurodollar Rate Loans during such Interest Period, ~~Agent~~ or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Lender shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by ~~Agent~~Lender, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans.. Fifth Amendment to Loan and Security Agreement (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for ~~Agent or any~~ Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) ~~Agent or such~~ Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of ~~such~~ Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for ~~such~~ Lender to make or maintain Eurodollar Rate Loans, ~~such~~ Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) ~~such Lender’s~~ Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent~~ Borrower ~~and Guarantors~~ shall pay to such Lender such amounts, if any, as may be required pursuant to Section ~~3.3(d~~3.6(d) below. (d) ~~Parent~~ Borrower ~~and Guarantors~~ shall indemnify ~~Agent and each~~ Lender and hold ~~Agent and each~~ Lender harmless from any loss or expense which ~~Agent or such~~ Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as reasonably determined by ~~such Agent or~~ such Lender) which would have accrued to ~~Agent or such~~ Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Pfsweb Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Anchor Glass Container Corp /New)

Appears in 1 contract

Samples: Loan and Security Agreement (Huffy Corp)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein to the contrary, for all purposes~~ In determining any additional amounts due from Borrower under this ~~Agreement (including~~ Section ~~3.3(a))~~3.6, ~~(x) the Xxxx-Xxxxx Xxxx Street Reform~~ Lender shall act reasonably and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith ~~(which determination shall be conclusive~~ and ~~binding upon Parent Borrower and Guarantors) that~~will, ~~by reason of circumstances affecting~~ to the ~~relevant market~~extent that the increased costs, ~~adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period~~reductions, or ~~(ii) Agent has~~ amounts received ~~notice from the Required Lenders that the Eurodollar Rate determined~~ or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof receivable relate to the ~~Parent Borrower as soon as practicable thereafter,~~ Lender’s or a Participant’s loans or commitments generally and ~~will also give prompt written notice~~ are not specifically attributable to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and ~~(C) each outstanding Eurodollar Rate Loan shall be converted~~commitments hereunder, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use ~~any reasonable~~ averaging and attribution ~~methods. (f) With respect~~ methods which are reasonable and equitable and which cover all such loans and commitments by the Lender or such Participant, as the case may be, whether or not the loan documentation for such other loans and commitments permits the Lender or such Participant to ~~any Lender’s claim for~~ receive compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower costs of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing type described in this Section ~~3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c)~~3.6.

Appears in 1 contract

Samples: Loan and Security Agreement (Ecost Com Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (~~i) with respect to Eurodollar Rate Loans,~~ i any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “"Funding Bank”"), or (~~ii) with respect to Eurodollar Rate Loans,~~ ii a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Ic Isaacs & Co Inc)

Changes in Laws and Increased Costs of Loans. If after the date hereof, either (a) ~~If after the Escrow Release Date, either (i) with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (iib) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (~~iii~~c) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (~~iii~~c), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (ia), (~~ii), (iii~~b) or (ivc) is or results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Trailer Bridge Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Five Below, Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority in effect after the date hereof or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration ~~thereof~~ thereof, in each case, as in effect after the date hereof, has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, in each case, as in effect after the date hereof, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time ~~upon demand by Agent~~ within 30 days of receipt of a reasonably detailed written invoice therefor pay to Agent additional amounts sufficient to indemnify such ~~Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent Borrower~~ Borrowers by Agent ~~or the applicable Lender~~ and shall be ~~conclusive~~presumptively correct, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Jazz Technologies, Inc.)

Changes in Laws and Increased Costs of Loans. (a) If If, after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental ~~Authority~~ Authority, or (iii) a Funding ~~Bank~~ Bank, any Lender or any ~~Lender~~ Issuing Bank determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s or Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or Issuing Bank’s policies with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender or Issuing Bank of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time ~~upon demand by Agent~~ pay to Agent promptly (but in any event within five (5) Business Days) following Agent’s written demand therefor such additional amounts sufficient to indemnify such ~~Lender~~Lender or Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost and the basis for such determination shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be conclusive, absent manifest error. ~~Notwithstanding anything herein to the contrary~~For purposes of this Section, ~~for all purposes under this Agreement (including Section 3.3(a)), (x)~~ the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests~~, rules~~, guidelines or directives ~~thereunder or issued~~ in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall ~~in each case~~ be deemed to ~~be a change in Law~~ have been adopted and gone into effect after the ~~Escrow Release Date, regardless~~ date of ~~the date enacted, adopted or issued~~this Agreement. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined reasonably and in good faith (~~which~~ such determination ~~shall~~ to be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give ~~telecopy~~ written or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn promptly whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower and Guarantors~~ Borrowers shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. Such amounts shall be payable promptly (but in any event within five (5) Business Days) following Agent’s written demand therefor. This covenant shall survive the termination ~~or non-renewal~~ of this Agreement and the payment of the Obligations. (e) ~~Any Agent~~ Failure or delay on the part of any Lender ~~claiming~~ or Issuing Bank to demand compensation ~~under~~ pursuant to the foregoing provisions of this Section 3 shall ~~deliver~~ not constitute a ~~certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence~~ waiver of ~~manifest error. In determining~~ such ~~amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any~~ Lender’s ~~claim for compensation under Section 3.3(a)~~or Issuing Bank’s right to demand such compensation, ~~(b) or (c), the Parent~~ provided that no Borrower shall ~~not~~ be required to compensate ~~such~~ a Lender or Issuing Bank pursuant to the foregoing provisions of this Section for any ~~amount~~ increased costs incurred or reductions suffered more than ~~one hundred and eighty (180) days~~ six months prior to the date that such Lender or Issuing Bank, as the case may be, notifies the ~~Parent~~ Administrative Borrower of the ~~event that gives~~ change giving rise to such ~~claim; provided~~ increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor (except that, if the ~~circumstance~~ change giving rise to such ~~claim~~ increased costs or reductions is retroactive, then ~~such 180-day~~ the six month period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Charming Shoppes Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including~~, without limitation~~, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any ~~central bank or other~~ Governmental Authority or (iii) a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such ~~authority, central bank or comparable agency~~Governmental Authority, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the ~~direct or indirect~~ effect of reducing the rate of return on any Lender’s or Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or Issuing Bank’s policies with respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender or Issuing Bank of funding or maintaining the Revolving Loans, the Letters of Credit or its Commitment (other than any increased cost resulting from (A) Taxes (as to which Section 6.5 and the limitations thereto shall govern) and any other taxes, or (B) changes in the basis of taxation of overall net income by the jurisdiction under the laws of which the Agent or such Lender is organized or in which the Agent’s or such Lender’s lending office is located or any political subdivision thereof), then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify such ~~Lender~~Lender or Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost and the calculation thereof, including reasonable supporting information, shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be ~~conclusive~~prima facie evidence, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Vs Holdings, Inc.)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loan, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (WHX Corp)

Changes in Laws and Increased Costs of Loans. (a) If Subject to Section 6.5 hereof, if after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), which Funding Bank is a commercial bank or other financial institution having combined capital and surplus and undivided profits of not less than $500,000,000 or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount reasonably deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost ~~on an after-Tax basis~~ (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost setting forth in reasonable detail the basis for such increased cost and calculation of the amount thereof shall be submitted to ~~the Parent~~ Administrative Borrower by or on behalf of the Lender seeking indemnification therefor or by Agent ~~or the applicable Lender~~ on its behalf and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the ~~then-~~then current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower and Guarantors~~ Subject to Section 6.5 hereof, Borrowers shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar ~~market~~market as set forth in a certificate from or on behalf of Agent or such Lender to such Borrower setting forth the calculation of such amounts. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Haynes International Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Lexington Precision Corp)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or such Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased ~~cost~~ cost, setting forth in reasonable detail the calculation of such cost, shall be submitted to ~~the Parent~~ Borrower by Agent ~~or the applicable Lender~~ and shall be ~~conclusive, absent manifest error~~presumptive evidence of such amount. ~~Notwithstanding anything herein to~~ Failure or delay on the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (part of Agent or any ~~successor~~ Lender to demand compensation for any increased costs or ~~similar authority)~~ reduction in amounts received or ~~the United States regulatory authorities,~~ receivable or reduction in ~~each case pursuant~~ return on capital shall not constitute a waiver of such Lender's right to ~~Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued~~demand such compensation. (b) If prior to the first day of any Interest Period, (i) Agent or any Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower as soon as practicable thereafter, ~~and will also give~~ which notice shall be withdrawn by prompt ~~written~~ telecopy or telephonic notice to ~~the Parent~~ Borrower by Agent when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ Borrower have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s 's Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower and Guarantors~~ Borrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent~~ Borrower ~~and Guarantors~~ shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any actual loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) ~~Any Agent or~~ Each Lender agrees that, upon the occurrence of any ~~Lender claiming compensation under this Section 3 shall deliver a certificate~~ event giving rise to the ~~Parent Borrower setting forth~~ operation of Section 3.3(a) or 3.3(c) with respect to such Lender, it will, if requested by Borrower, use reasonable efforts to designate another lending office for any loans affected by such event with the ~~additional amount or amounts to be paid to it hereunder which shall be conclusive in~~ object of avoiding the ~~absence~~ consequences of ~~manifest error. In determining~~ such ~~amount, such Agent or such Lender may use any reasonable averaging and attribution methods~~event. (f) ~~With~~ If any payments or prepayments in respect of the Eurodollar Rate Loans are received by Agent or any Lender other than on the last day of the applicable Interest Period (whether pursuant to acceleration, upon maturity or otherwise), including any ~~Lender’s claim for compensation~~ payments pursuant to the application of collections under Section ~~3.3(a~~6.3 or any other payments made with the proceeds of Collateral, Borrower shall pay to Agent, upon demand by Agent (or Agent may, at its option, charge any loan account of Borrower) any amounts required to compensate any Lender or any Participant for any additional actual loss (including loss of anticipated profits), ~~(b)~~ cost or ~~(c)~~expense incurred by such person as a result of such prepayment or payment, including, without limitation, any loss, cost or expense incurred by reason of the ~~Parent Borrower shall not be required~~ liquidation or reemployment of deposits or other funds acquired by such person to make or maintain such Eurodollar Rate Loans or any portion thereof. A certificate of Agent or the applicable Lender setting forth the basis for the determination of such amount necessary to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be ~~extended~~ delivered to ~~include the period~~ Borrower and shall be presumptive evidence of ~~retroactive effect thereof~~such amount. (g) If any Lender ~~requests~~ delivers notice pursuant to Sections 3.3(a) and 3.3(b) above in which such Lender asserts a claim for compensation which claim is not being asserted by the other Lenders, Borrower may require within 90 days of receiving such notice, at its expense, that such Lender assign, at par, without recourse (in accordance with Section 13.6(a) hereof) all of its interests, rights and obligations hereunder and under the other Financing Agreements (including all of its Commitments and the Loans at the time owing to it and any participations in Loans held by it) to an Eligible Transferee proposed by Borrower (a "Substitute Lender") provided, that (i) no Event of Default shall exist at the time of such assignment, (ii) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other governmental authority, (iii) Borrower shall have received the written consent of Agent to such assignment (which consent shall not be unreasonably withheld or delayed) and (iv) Borrower shall have paid to the assigning Lender all monies accrued and owing hereunder to it (including pursuant to Section 3.3(a)) and 3.3(b) above. (h) Promptly after any Lender becomes aware of any circumstance that will, (bin its sole judgment, result in a request for increased compensation pursuant to Section 3.3(a) ~~or (c)~~and 3.3(b) above, ~~then~~ such Lender ~~will, if requested by the Parent Borrower,~~ shall notify Borrower thereof. Each Lender will use ~~commercially~~ reasonable efforts to designate ~~another Lending Office~~ a lending office (or a different lending office), so long as such designation is not adverse to such Lender in such Lender's sole judgment, if such designation would avoid the need to, or reduce the amount which would be required to, compensate such Lender for any ~~Loan affected by such event; provided that such efforts are made~~ additional costs incurred or reductions suffered. Failure on ~~terms that,~~ the part of any Lender to notify Borrower or to demand compensation for any increased costs in ~~the reasonable judgment~~ amounts received or receivable with respect to any period shall not constitute a waiver of such Lender~~, cause~~ 's right to demand compensation with respect to such ~~Lender and its Lending Office(s) to suffer no material economic, legal~~ period or ~~regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone~~ any ~~of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c)~~other period.

Appears in 1 contract

Samples: Loan and Security Agreement (Champion Enterprises Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Delta Apparel Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve ~~requirements~~requirements (other than reserves taken into account in the calculation of the "Reserve Percentage" in the definition of "Adjusted Eurodollar Rate"), applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender reasonably determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time ~~upon~~ within five (5) days of demand by Agent pay to Agent additional amounts sufficient to indemnify such ~~Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate (with reasonably detailed calculations) as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and ~~Guarantors~~Guarantors absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s 's Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and to hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Keystone Consolidated Industries Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by ~~Agent~~ Agent, pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Mackie Designs Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority in effect after the date hereof or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration ~~thereof~~ thereof, in each case, as in effect after the date hereof, has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, in each case, as in effect after the date hereof, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letters of Credit, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time ~~upon demand by Agent~~ within 30 days of receipt of a reasonably detailed written invoice therefor pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent Borrower~~ Borrowers by ~~Agent or the applicable~~ Lender and shall be ~~conclusive~~presumptively correct, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Jazz Semiconductor Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Little Switzerland Inc/De)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority in effect after the date hereof or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration ~~thereof~~ thereof, in each case, as in effect after the date hereof, has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, in each case, as in effect after the date hereof, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letters of Credit or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time ~~upon demand by Agent~~ within 30 days of receipt of a reasonably detailed written invoice therefor pay to Agent additional amounts sufficient to indemnify such ~~Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent Borrower~~ Borrowers by Agent ~~or the applicable Lender~~ and shall be ~~conclusive~~presumptively correct, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be ~~conclusive and binding upon Parent Borrower and Guarantors~~presumptively correct) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent ~~has received notice from the Required Lenders~~ determines that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent Borrower~~ Borrowers as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent Borrower~~ Borrowers when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent Borrower~~ Borrowers have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application ~~thereof~~ thereof, in each case, occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent Borrower~~ Borrowers (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and to hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent Borrower~~ Borrowers in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent Borrower has~~ Borrowers have given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent Borrower~~ Borrowers in making any prepayment of a Eurodollar Rate Loan after ~~Parent Borrower has~~ Borrowers have given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by ~~such~~ Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination ~~or non-renewal~~ of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Jazz Technologies, Inc.)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date of the Original Loan Agreement, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or such Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or its Total Commitment (other than any increased cost resulting from (1) Taxes (as to which Section 6.4(d) and the limitations thereto shall govern) or (2) changes in the basis of taxation of overall net income by the jurisdiction under the laws of which the Agent or such Lender is organized or in which the Agent’s or such Lender’s lending office is located or any political subdivision thereof), then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased ~~cost on an after-Tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified)~~cost. A certificate as to the amount of such increased cost shall be submitted to ~~the Parent Borrower~~ Borrowers by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (New York & Company, Inc.)

Appears in 1 contract

Samples: Loan and Security Agreement (Kirklands Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender reasonably determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender in good faith to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower Agent by Agent ~~or the applicable Lender~~ and shall be ~~conclusive~~conclusive as to the amount, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the ~~first day~~ date of the request of Borrower Agent for any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate ~~for such Interest Period~~Loan in accordance with the terms hereof, ~~or (ii)~~ Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or if prior to the first day of any Interest Period, Agent shall have determined in good faith (which determination shall be conclusive and binding upon Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Borrower Agent as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Borrower Agent when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Borrower Agent on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s 's Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Borrower Agent on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Perry Ellis International Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any ~~applicable law, rule or regulation~~ Applicable Law regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, Letter of Credit Accommodations, or its Commitment, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower Agent by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any ~~Interest Period~~month, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower and Guarantors~~Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the ~~Eurodollar Rate for such Interest Period~~Libordollar Rate, or (ii) Agent has received notice from the Required Lenders that the ~~Eurodollar~~ Libordollar Rate determined or to be determined for such ~~Interest Period~~ month will not adequately and fairly reflect the cost to such Lenders of making or maintaining ~~Eurodollar~~ their Libordollar Rate Loans during such ~~Interest Period~~month, or (iii) Dollar deposits in the principal amounts of the Libordollar Rate Loans for such two month period on which the Libordollar Rate is to be based are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent Borrower~~ Borrowers and Lenders as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent Borrower~~ Borrowers and Lenders when such conditions no longer exist. If such notice is given (A) any ~~Eurodollar~~ Libordollar Rate Loans requested to be made on the first day of such ~~Interest Period~~ month shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such ~~Interest Period~~ month to or continued as ~~Eurodollar~~ Libordollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding ~~Eurodollar~~ Libordollar Rate Loan shall be converted, on the last day of the then-current ~~Interest Period thereof,~~ month to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further ~~Eurodollar~~ Libordollar Rate Loans shall be made or continued as such, nor shall ~~the Parent Borrower~~ Borrowers have the right to convert ~~Base~~ Prime Rate Loans to ~~Eurodollar~~ Libordollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain ~~Eurodollar~~ Libordollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Borrower Agent and Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make ~~Eurodollar~~ Libordollar Rate Loans, continue ~~Eurodollar~~ Libordollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to ~~Eurodollar~~ Libordollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain ~~Eurodollar~~ Libordollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a ~~Eurodollar~~ Libordollar Rate Loan is requested and (iii) such Lender’s 's Loans then outstanding as ~~Eurodollar~~ Libordollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current ~~Interest Periods~~ months with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Kirklands Inc)

Changes in Laws and Increased Costs of Loans. (a) If Subject to the provisions set forth in Section 3.4, if after the ~~Escrow Release~~ Effective Date, either (i) ~~with respect to Eurodollar Rate Loans,~~ any ~~change in, or~~ Change in ~~the interpretation of, any~~ Law is introduced, including, without limitation, with respect to ~~reserve~~ reserve, special deposit, compulsory loan, insurance charge, liquidity or other similar requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit necessary to fund the Loans hereunder (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described ~~below~~below or subjects any Lender to any Taxes on its loans, loan principal, letter of credit commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s capital as a consequence of its obligations hereunder to a level below that which ~~such Lender~~ Xxxxxx could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Administrative Agent pay to Administrative Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable 6991691.13 82 deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Lead Borrower by Administrative Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If Subject to the provisions set forth in Section 3.4, if prior to the first day of any Interest Period, (i) Administrative Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining ~~the Eurodollar Rate~~ Adjusted Term SOFR for such Interest ~~Period~~Period or Adjusted Daily Simple SOFR, or (ii) Administrative Agent has received notice from the Required Lenders that ~~the Eurodollar Rate~~ Adjusted Term SOFR or Adjusted Daily Simple SOFR determined or to be determined for such Interest ~~Period~~ Period, as applicable, will not adequately and fairly reflect the cost to Lenders of making or maintaining ~~Eurodollar~~ SOFR Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the SOFR Rate Loans to which such Interest Period is to be applicable are not generally available in the applicable market, Administrative Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Lead Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Lead Borrower when such conditions no longer exist. If such notice is given (A) any ~~Eurodollar~~ SOFR Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as ~~Eurodollar~~ SOFR Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding ~~Eurodollar~~ SOFR Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Administrative Agent, no further ~~Eurodollar~~ SOFR Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower have the right to convert Base Rate Loans to ~~Eurodollar~~ SOFR Rate Loans. (c) Notwithstanding any other provision ~~herein~~herein (but subject to the provisions set forth in Section 3.4), if the adoption of or any ~~change~~ Change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date Law shall make it unlawful for Administrative Agent or any Lender to make or maintain ~~Eurodollar~~ SOFR Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Administrative Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Lead Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make ~~Eurodollar~~ SOFR Rate Loans, continue ~~Eurodollar~~ SOFR Rate Loans as such and convert Base Rate Loans to ~~Eurodollar~~ SOFR Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain ~~Eurodollar~~ SOFR Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a ~~Eurodollar~~ SOFR Rate Loan is requested and (iii) such Lender’s Loans then outstanding as ~~Eurodollar~~ SOFR Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a ~~Eurodollar~~ Term SOFR Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Administrative Agent and each Lender and to hold Administrative Agent and each Lender harmless from any loss or expense which Administrative Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ a Borrower in making a borrowing of, conversion into or extension of ~~Eurodollar~~ SOFR Rate Loans after ~~Parent~~ 6991691.13 83 such Borrower has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a ~~Eurodollar~~ SOFR Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of ~~Eurodollar~~ SOFR Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to ~~Eurodollar~~ SOFR Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such ~~Eurodollar~~ SOFR Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Administrative Agent or such Lender) which would have accrued to Administrative Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the ~~interbank Eurodollar~~ applicable market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) ~~Any~~ Borrowers and Guarantors shall be liable for any tax or penalties imposed on Administrative Agent or any Lender ~~claiming compensation under this Section 3 shall deliver~~ as a ~~certificate~~ result of the financing arrangements provided for herein and each Borrower and Guarantor agrees to indemnify and hold Administrative Agent harmless with respect to the ~~Parent~~ foregoing, and to repay to Administrative Agent, for the benefit of Lenders, on demand the amount thereof, and until paid by such Borrower ~~setting forth the additional~~ or Guarantor such amount ~~or amounts to be paid to it hereunder which~~ shall be ~~conclusive in~~ added and deemed part of the ~~absence~~ Loans, provided, that, nothing contained herein shall be construed to require any Borrower or Guarantor to pay any income, franchise or similar taxes imposed upon Lenders and attributable to any amounts charged or paid hereunder to Lenders. The foregoing indemnity shall survive the payment of ~~manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging~~ the Obligations and ~~attribution methods~~the termination of this Agreement. (f) ~~With respect~~ Each Lender requiring compensation pursuant to ~~any Lender’s claim for compensation under~~ Section 3.3(a), (b3.3(d) or ~~(c), the Parent Borrower~~ 3.3(e) shall ~~not be required to compensate such Lender for~~ notify Borrowers and Administrative Agent in writing of any ~~amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the~~ event ~~that gives rise to such claim; provided that, if the~~ or circumstance giving rise to such ~~claim~~ demand for compensation no later than ninety (90) days following the date upon which the Lender has actual knowledge of such event or circumstance, and Borrowers shall not be obligated to compensate a Lender for any such increased cost or reduction which is ~~retroactive, then~~ not covered in such ~~180-~~notice within such ninety (90) day ~~period referred~~ period. Any demand for compensation pursuant to ~~above~~ this Section 3.3 shall be ~~extended to include~~ in writing and shall state the ~~period of retroactive effect thereof~~amount due, if any, under Section 3.3(d) or 3.3(e) and shall set forth in reasonable detail the calculations upon which such Lender determined such amount. Such written demand shall be conclusive, absent manifest error. (g) If a Borrower is required to pay additional amounts to any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a) or Section 3.3(e) that increase the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders, then such Lender shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office with respect to making SOFR Rate Loans so as to eliminate any such additional payment by Borrowers which may thereafter accrue, if such change in the judgment of such 6991691.13 84 Lender is not otherwise disadvantageous to such Lender. In the event that any one or more Lenders, pursuant to Section 3.3(a) or Section 3.3(e) hereof, incur any increased costs or taxes (other than increased costs to the extent such increased costs are not a recurring cost) for which any such Lender demands compensation pursuant to Section 3.3(a) or Section 3.3(e) hereof which increases the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders and such Lender has not mitigated such costs within sixty (60) days after receipt by such Xxxxxx from Lead Borrower of a written notice that such Xxxxxx’s effective lending rate has so exceeded the effective lending rate of the other Lenders, then and in any such event, Lead Borrower may substitute another financial institution which is an Eligible Transferee acceptable to Administrative Agent for such Lender to assume the Commitment of such Lender and to purchase the Loans of such Lender hereunder, without recourse to or warranty by, or expense to, such Lender for a purchase price equal to the outstanding principal amount of the Loans owing to such Lender plus any accrued but unpaid interest on such Loans and accrued but unpaid fees and other amounts in respect of such Xxxxxx’s Commitment and share of the Loans (other than any early termination fee). Upon such purchase such Lender shall no longer be a party hereto or have any rights or benefits hereunder (except for rights or benefits that such Xxxxxx would retain hereunder and under the other Financing Agreements upon payment in full of all of the Obligations other than as to any early termination fee) and the replacement Lender shall succeed to the rights and benefits, and shall assume the obligations, of such Lender hereunder and thereunder. In no event may Lead Borrower replace a Lender that is also Administrative Agent or an issuer of a Letter of Credit Accommodation. (h) For purposes of this Section 3.3 and any other applicable provision of this Agreement, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection, the Basel Committee on Banking Supervision (or any successor or similar authority), ~~(b)~~ the Bank for International Settlements and all rules, regulations, orders, requests, guidelines or ~~(c)~~directives in connection therewith are deemed to have been enacted and become effective after the date of this Agreement.

Appears in 1 contract

Samples: Loan and Security Agreement (SpartanNash Co)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the ~~Loans~~Loans or the Letter of Credit Accommodations, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of such Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such ~~Lender~~ shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and to hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a ~~prepayment~~ pre-payment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that ~~gives rise to such claim; provided that~~any one or more Lenders, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a) hereof, incur any increased costs (other than increased costs to the extent such increased costs are not a recurring cost) for which any such Lender demands compensation pursuant to Section 3.3(a) hereof which increases the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders and such Lender has not mitigated such costs within sixty (60) days after receipt by such Lender from any Borrower of a written notice that such Lender’s effective lending rate has so exceeded the effective lending rate of the other Lenders, then and in any such event, such Borrower may substitute another financial institution which is an Eligible Transferee acceptable to Agent for such Lender to assume the Commitment of such Lender and to purchase the Loans of such Lender hereunder, without recourse to or warranty by, or expense to, such Lender for a purchase price equal to the outstanding principal amount of the Loans owing to such Lender plus any accrued but unpaid interest on such Loans and accrued but unpaid fees and other amounts in respect of such Lender’s Commitment and share of the Loans (other than any early termination fee set forth in Section 13.1(c) hereof). Upon such purchase such Lender shall no longer be a party hereto or have any rights or benefits hereunder (except for rights or benefits that such Lender would retain hereunder and under the other Financing Agreements upon payment in full of all of the Obligations) and the replacement Lender shall succeed to the rights and benefits, ~~(b)~~ and shall assume the obligations, of such Lender hereunder and thereunder. Agent and Lenders shall cooperate with Borrowers to amend the Financing Agreements to reflect such substitution. In no event may Borrowers replace a Lender that is also Agent or ~~(c)~~an issuer of a Letter of Credit Accommodation.

Appears in 1 contract

Samples: Loan Agreement (Listerhill Total Maintenance Center LLC)

Appears in 1 contract

Samples: Loan and Security Agreement (Reptron Electronics Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Universal Automotive Industries Inc /De/)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change (other than any change by way of imposition of an increase in reserve requirements included in the calculation of Adjusted Eurodollar Rate) in, or in the interpretation of, any ~~Law~~ law or regulation is ~~introduced~~implemented, including, without limitation, with respect to capital adequacy, reserve requirements or similar requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future ~~guideline~~ directive or request with respect to capital adequacy, reserve requirements or similar requirements from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time within fifteen (15) days after notice (which notice shall not be effective unless delivered within thirty (30) days after such Lender has begun to incur such costs) and upon demand by Agent pay to Agent for the benefit of the affected Lenders additional amounts sufficient to indemnify such ~~Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate stating the basis for such demand and showing in reasonable detail the calculation as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be ~~canceled~~ suspended and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Loan Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this ~~Agreement, and~~ Agreement or (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Loan Agreement and the payment of the Obligations. (e) ~~Any Agent or any Lender claiming compensation under this Section 3 shall deliver~~ If a ~~certificate~~ Borrower is required to ~~the Parent Borrower setting forth the~~ pay additional ~~amount or~~ amounts to ~~be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use~~ any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a)) that increase the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders, then such Lender shall use reasonable efforts (bconsistent with legal and regulatory restrictions) to change the jurisdiction of its lending office with respect to making Eurodollar Rate Loans so as to eliminate any such additional payment by any Borrower which may thereafter accrue, if such change in the judgment of such Lender is not otherwise disadvantageous to such Lender. In the event that any one or more Lenders, pursuant to Section 3.3(a) hereof, incur any increased costs (c)other than increased costs to the extent such increased costs are not a recurring cost) for which any such Lender demands compensation pursuant to Section 3.3(a) hereof which increases the effective lending rate of such Lender with respect to its share of the Loans to greater than one-eighth (1/8%) percent in excess of the percentage of the effective lending rate of the other Lenders and such Lender has not mitigated such costs within sixty (60) days after receipt by such Lender from Administrative Borrower of a written notice that such Lender’s effective lending rate has so exceeded the effective lending rate of the other Lenders, then and in any such event, Borrowers may substitute another financial institution which is an Eligible Transferee acceptable to Agent for such Lender to assume the Commitment of such Lender and to purchase the Loans of such Lender hereunder, without recourse to or warranty by, or expense to, such Lender for a purchase price equal to the outstanding principal amount of the Loans owing to such Lender plus any accrued but unpaid interest on such Loans and accrued but unpaid fees and other amounts in respect of such Lender’s Commitment and share of the Loans. Upon such purchase such Lender shall no longer be a party hereto or have any rights or benefits hereunder (except for rights or benefits that such Lender would retain hereunder and under the other Financing Agreements upon payment in full of all of the Obligations other than as to any early termination fee) and the replacement Lender shall succeed to the rights and benefits, and shall assume the obligations, of such Lender hereunder and thereunder. Agent and Lenders shall cooperate with Borrowers to amend the Financing Agreements to reflect such substitution. In no event may Borrowers replace a Lender that is also Agent or an issuer of an outstanding Letter of Credit Accommodation.

Appears in 1 contract

Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)

Changes in Laws and Increased Costs of Loans. (a) If Other than with respect to the indemnification obligations of Borrowers and Guarantors to Agent and Lenders that are subject to Section 6.12 hereof, if after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ a Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “"Funding Bank”"), which Funding Bank is a commercial bank or other financial institution having combined capital and surplus and undivided profits of not less than $500,000,000 or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost ~~on an after-Tax basis~~ (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost setting forth in reasonable detail the basis for such increased cost and the calculation of the amount thereof shall be submitted to ~~the Parent~~ US Borrower by or on behalf of the Lender seeking indemnification therefor or by Agent ~~or the applicable Lender~~ on its behalf and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ US Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ US Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ a Borrower (or US Borrower on behalf of a Canadian Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Hartmarx Corp/De)

Changes in Laws and Increased Costs of Loans. ~~(a) If~~ Subject to Section 6.5 hereof, if after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), which Funding Bank is a commercial bank or other financial institution having combined capital and surplus and undivided profits of not less than $500,000,000 or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount reasonably deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower and Guarantors~~ Borrowers shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost ~~on an after-Tax basis~~ (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost setting forth in reasonable detail the basis for such increased cost and calculation of the amount thereof shall be submitted to ~~the Parent~~ Administrative Borrower by or on behalf of the Lender seeking indemnification therefor or by Agent ~~or the applicable Lender~~ on its behalf and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Haynes International Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Impax Laboratories Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including~~, without limitation~~, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any ~~central bank or other~~ Governmental Authority or (iii) a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank or~~ Bank, any Lender or Issuing Bank complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such ~~authority, central bank or comparable agency~~Governmental Authority, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the ~~direct or indirect~~ effect of reducing the rate of return on any Lender’s or Issuing Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Bank could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s or Lender’s or Issuing Bank’s policies with respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender or Issuing Bank of funding or maintaining the Revolving Loans, the Letters of Credit or its Commitment (other than any increased cost resulting from (1) Taxes (as to which Section 6.5 and the limitations thereto shall govern) and any other taxes, or (2) changes in the basis of taxation of overall net income by the jurisdiction under the laws of which the Agent or such Lender is organized or in which the Agent’s or such Lender’s lending office is located or any political subdivision thereof), then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify such ~~Lender~~Lender or Issuing Bank, as the case may be, against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost and the calculation thereof, including reasonable supporting information, shall be submitted to ~~the Parent~~ Administrative Borrower by Agent or the applicable Lender and shall be ~~conclusive~~prima facie evidence, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be ~~conclusive and binding upon Parent Borrower and Guarantors)~~ prima facie evidence that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give ~~telecopy or telephonic notice thereof~~ a written certificate to ~~the Parent~~ that effect to Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Revolving Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written ~~notice of~~ certificate describing such circumstances to ~~the Parent~~ Administrative Borrower and Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the ~~commitment~~ Commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a ~~commitment~~ Commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Revolving Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Revolving Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent~~ Prior to requesting indemnification from the Borrowers for any material increased costs described in Sections 3.3(a) and (c) hereto (“Increased Costs”), (i) any Lender affected by any Increased Costs (an “Affected Lender”) shall make commercially reasonable efforts to designate a different lending office, if such designation would prevent the accruing of Increased Costs or decrease the amount thereof by a material amount, and would not, in the commercially reasonable judgment of Affected Lender, be otherwise disadvantageous to Affected Lender, and (ii) if such designating of a different lending office would, in the reasonable judgment of Affected Lender, be disadvantageous to Affected Lender, then such Lender shall either: (A) assign all of its rights and obligations under this Agreement to an Eligible Transferee, if such assignment would eliminate or materially reduce the amount of the Increased Costs, and would not, in the reasonable judgment of Affected Lender, be disadvantageous to Affected Lender; or (B) offer the Borrower to repay within fifteen (15) Business Days after written notice provided to the Borrower (with a copy to Agent) to that effect, all of Affected Lender’s interest in the Loans. Any repayment by the Borrower pursuant to this Section 3.3(d)(ii)(B) shall be made directly to the affected Lender without giving effect to Section 6.4, Section 6.10 or any other provision in this Agreement to the contrary. (e) Borrowers and Guarantors shall indemnify Agent and each Lender and to hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last ~~day~~ Business Day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last ~~day~~ Business Day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Vs Direct Inc.)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Agent, any Lender or any banking or financial institution from whom any Agent or any Lender borrows funds or obtains credit (a “Funding Bank”)) other than any change in, or in the interpretation of any Tax and any Excluded Taxes, or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding ~~Bank~~ Bank, any Agent or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding ~~Bank~~ Bank, any Agent or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding ~~Bank~~ Bank, any Agent or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ such Agent’s or such Lender’s capital as a consequence of its obligations hereunder to a level below that which such Agent or such Lender could have achieved but for such adoption, change or compliance (taking into consideration the Funding Bank’s, such Agent’s or such Lender’s policies with respect to capital adequacy) by an amount deemed by such Agent or such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Agent or any Lender of funding or maintaining the Loans, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Administrative and Collateral Agent, for itself or the applicable Lender, pay to ~~Agent~~ Administrative and Collateral Agent, for itself or the applicable Lender, additional amounts sufficient to indemnify ~~such Lender, as~~ Agents or the ~~case may be,~~ applicable Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified), provided that such demand is made within 180 days of the incurrence of such loss, costs or expenses. A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by Administrative and Collateral Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (BlueLinx Holdings Inc.)

Appears in 1 contract

Samples: Loan and Security Agreement (Image Entertainment Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (American Biltrite Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letters of Credit, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Vitacost.com, Inc.)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) with respect to Eurodollar Rate Loans, any change in, or in the interpretation of, any Law is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) with respect to Eurodollar Rate Loans, a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), (iii) or (iv) is an increase in the cost to any Lender of funding or maintaining the Term Loans, then ~~Parent~~ Borrower and Guarantors shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify such Lender, as the case may be, against such increased cost on an after-Tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to the ~~Parent~~ Borrower by Agent or the applicable Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the ~~Escrow Release Date~~date hereof, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent~~ the Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the ~~Parent~~ Borrower as soon as practicable thereafter, and will also give prompt written notice to the ~~Parent~~ Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Term Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the ~~Parent~~ Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the ~~Parent~~ Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Term Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent~~ Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent~~ The Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the ~~Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the ~~Parent~~ Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the ~~Parent~~ Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the ~~Parent~~ Borrower and Guarantors shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the ~~Parent~~ Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the ~~Parent~~ Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the ~~Parent~~ Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Term Loan Agreement (Albertsons Companies, Inc.)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines in good faith that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed in good faith by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Agent (accompanied by a certificate of such Lender as to the amount of such increased costs) pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost ~~on an after-Tax basis~~ (~~after taking into account applicable deductions~~ other than with respect to any such increased costs relating to Taxes, the indemnification for which shall be governed by Sections 6.4(b) and ~~credits in respect of the amount indemnified~~6.11 hereof). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower Representative by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and ~~Guarantors~~Guarantors absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Agent shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower Representative as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower Representative when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any ~~Loans that were~~ Loan to ~~have been~~ be converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower Representative on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) Agent or such Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower Representative (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender~~’s Loans~~ 's portion of the Loan then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense (other than with respect to Taxes, the indemnification for which shall be governed by Sections 6.4(b) and 6.11 hereof) which Agent or such Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower Representative on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower has given a notice thereof in accordance with the provisions of this Agreement, ~~and (iii~~and(iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (International Wire Group Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Westpoint Stevens Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Drugmax Inc)

Changes in Laws and Increased Costs of Loans. (a) If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom ~~any~~ Lender borrows funds or obtains credit (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or ~~any~~ Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or ~~any~~ Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or ~~any~~ Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on ~~any~~ 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by ~~such~~ Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to ~~any~~ Lender of funding or maintaining the ~~Loans~~Loans or the Letters of Credit, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by ~~Agent~~ Lender pay to ~~Agent~~ Lender additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lender against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Administrative Borrower by ~~Agent or the applicable~~ Lender and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) ~~Agent~~ Lender shall have determined in good faith (which determination shall be conclusive and binding upon ~~Parent Borrower~~ Borrowers and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or (ii) ~~Agent has received notice from the Required Lenders~~ Lender determines that the Adjusted Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to ~~Lenders~~ Lender of making or maintaining Eurodollar Rate Loans during such Interest Period, ~~Agent~~ or (iii) Dollar deposits in the principal amounts of the Eurodollar Rate Loans to which such Interest Period is to be applicable are not generally available in the London interbank market, Lender shall give telecopy or telephonic notice thereof to ~~the Parent~~ Administrative Borrower as soon as practicable thereafter, and will also give prompt written notice to ~~the Parent~~ Administrative Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as ~~Base~~ Prime Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as ~~Base~~ Prime Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to ~~Base~~ Prime Rate Loans. Until such notice has been withdrawn by ~~Agent~~Lender, no further Eurodollar Rate Loans shall be made or continued as such, nor shall ~~the Parent~~ any Borrower (or Administrative Borrower on behalf of any Borrower) have the right to convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the ~~Escrow Release Date~~ date hereof shall make it unlawful for ~~Agent or any~~ Lender to make or maintain Eurodollar Rate Loans as contemplated by this ~~Agreement~~ Agreement, (i) ~~Agent or such~~ Lender shall promptly give written notice of such circumstances to ~~the Parent~~ Administrative Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of ~~such~~ Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert ~~Base~~ Prime Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for ~~such~~ Lender to make or maintain Eurodollar Rate Loans, ~~such~~ Lender shall then have a commitment only to make a ~~Base~~ Prime Rate Loan when a Eurodollar Rate Loan is requested and (iii) ~~such Lender’s~~ Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to ~~Base~~ Prime Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, ~~Parent Borrower~~ Borrowers and Guarantors shall pay to ~~such~~ Lender such amounts, if any, as may be required pursuant to Section ~~3.3(d~~3.5(d) below. (d) ~~Parent Borrower~~ Borrowers and Guarantors shall indemnify ~~Agent and each~~ Lender and to hold ~~Agent and each~~ Lender harmless from any loss or expense which ~~Agent or such~~ Lender may sustain or incur as a consequence of (i) default by ~~the Parent~~ any Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by ~~the Parent~~ any Borrower in making any prepayment of a Eurodollar Rate Loan after ~~Parent~~ such Borrower (or Administrative Borrower on behalf of such Borrower) has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein ~~(excluding the Applicable Margin)~~ over (B) the amount of interest (as determined by ~~such Agent or such~~ Lender) which would have accrued to ~~Agent or such~~ Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Lydall Inc /De/)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release Date~~date hereof, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve requirements, applicable to any Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit (a “"Funding Bank”"), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any Lender’s '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 the Funding Bank’s 's or Lender’s 's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or the B/A Accommodations, then ~~Parent~~ Borrower ~~and Guarantors~~ shall from time to time upon demand by Agent pay to Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified), so long as such amounts have accrued on or after the day which is two hundred seventy (270) days prior to the date on which Agent first made demand therefor. A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Borrower by Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (Franks Nursery & Crafts Inc)

Changes in Laws and Increased Costs of Loans. ~~(a)~~ If after the ~~Escrow Release~~ Effective Date, either (i) ~~with respect to Eurodollar Rate Loans,~~ any change in, or in the interpretation of, any ~~Law~~ law or regulation is introduced, including, without limitation, with respect to reserve or liquidity requirements, applicable to ~~any~~ Lender or any banking or financial institution from whom any Lender borrows funds or obtains credit necessary to fund the Loans hereunder (a “Funding Bank”), or (ii) ~~with respect to Eurodollar Rate Loans,~~ a Funding Bank or any Lender complies with any future guideline or request from any central bank or other Governmental Authority or (iii) a Funding Bank or any Lender determines that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof has or would have the effect described below, or a Funding Bank or any Lender complies with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, and in the case of any event set forth in this clause (iii), such adoption, change or compliance has or would have the direct or indirect effect of reducing the rate of return on any 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 the Funding Bank’s or Lender’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, or (iv) a Funding Bank or any Lender determines that any change in, or in the interpretation of, any law or regulation shall subject such Funding Bank or such Lender to any Tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis in Taxation of payments to such Funding Bank or such Lender in respect thereof (except for any Excluded Taxes, or Indemnified Taxes or Other Taxes indemnifiable under Section 6.1); and the result of any of the foregoing events described in clauses (i), (ii), ) or (iii) is or ~~(iv) is~~ results in an increase in the cost to any Lender of funding or maintaining the Loans, the Letter of Credit Accommodations or its Commitment, then ~~Parent Borrower~~ Borrowers and Guarantors shall from time to time upon demand by Administrative Agent pay to Administrative Agent additional amounts sufficient to indemnify ~~such Lender, as the case may be,~~ Lenders against such increased cost on an after-~~Tax~~ tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified). A certificate as to the amount of such increased cost shall be submitted to ~~the Parent~~ Lead Borrower by Administrative Agent ~~or the applicable Lender~~ and shall be conclusive, absent manifest error. Notwithstanding anything herein to the contrary, for all purposes under this Agreement (including Section 3.3(a)), (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in Law after the Escrow Release Date, regardless of the date enacted, adopted or issued. (b) If prior to the first day of any Interest Period, (i) Agent shall have determined in good faith (which determination shall be conclusive and binding upon Parent Borrower and Guarantors) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or (ii) Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining Eurodollar Rate Loans during such Interest Period, Agent shall give telecopy or telephonic notice thereof to the Parent Borrower as soon as practicable thereafter, and will also give prompt written notice to the Parent Borrower when such conditions no longer exist. If such notice is given (A) any Eurodollar Rate Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (B) any Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Rate Loans shall be converted to or continued as Base Rate Loans and (C) each outstanding Eurodollar Rate Loan shall be converted, on the last day of the then-current Interest Period thereof, to Base Rate Loans. Until such notice has been withdrawn by Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Parent Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans. (c) Notwithstanding any other provision herein, if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof occurring after the Escrow Release Date shall make it unlawful for Agent or any Lender to make or maintain Eurodollar Rate Loans as contemplated by this Agreement (i) Agent or such Lender shall promptly give written notice of such circumstances to the Parent Borrower (which notice shall be withdrawn whenever such circumstances no longer exist), (ii) the commitment of such Lender hereunder to make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be canceled and, until such time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Rate Loans, such Lender shall then have a commitment only to make a Base Rate Loan when a Eurodollar Rate Loan is requested and (iii) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, Parent Borrower and Guarantors shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.3(d) below. (d) Parent Borrower and Guarantors shall indemnify Agent and each Lender and hold Agent and each Lender harmless from any loss or expense which Agent or such Lender may sustain or incur as a consequence of (i) default by the Parent Borrower in making a borrowing of, conversion into or extension of Eurodollar Rate Loans after Parent Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (ii) default by the Parent Borrower in making any prepayment of a Eurodollar Rate Loan after Parent Borrower has given a notice thereof in accordance with the provisions of this Agreement, and (iii) the making of a prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto. With respect to Eurodollar Rate Loans, such indemnification may include an amount equal to the excess, if any, of (A) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Rate Loans provided for herein (excluding the Applicable Margin) over (B) the amount of interest (as determined by such Agent or such Lender) which would have accrued to Agent or such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank Eurodollar market. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations. (e) Any Agent or any Lender claiming compensation under this Section 3 shall deliver a certificate to the Parent Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (f) With respect to any Lender’s claim for compensation under Section 3.3(a), (b) or (c), the Parent Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Parent Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (g) If any Lender requests compensation under Section 3.3(a), (b) or (c), then such Lender will, if requested by the Parent Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.3(g) shall affect or postpone any of the Obligations of the Parent Borrower or the rights of such Lender pursuant to Section 3.3(a), (b) or (c).

Appears in 1 contract

Samples: Loan and Security Agreement (SpartanNash Co)

Appears in 1 contract

Samples: Loan and Security Agreement (Gsi Group Inc)

Appears in 1 contract

Samples: Loan and Security Agreement (Hhgregg, Inc.)

Common use of Changes in Laws and Increased Costs of Loans Clause in Contracts