Increased Cost and Reduced Return. (a) If, a Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender): (i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes); (ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or (iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction. (b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit. (c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Valaris LTD)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) case of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, Committed Loan or such Lender becomes an Agent, an Issuing Bank Letter of Credit or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain make Committed Loans or issue or participate in any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or (y) the date of any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other thanCompetitive Bid Quote, in each casethe case of any Competitive Bid Loan, (A) Indemnified Taxesany Change in Law shall impose, (B) Taxes described in clauses (b) modify or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Currency Loan any such requirement with respect to which such Lender is entitled to compensation during the relevant interest period under Section 2.21), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall subject any Lender to any taxes (other than any taxes indemnified under Section 8.04 or excluded in the definition of Taxes) on its Loans, loan principal, Letters of Credit, Commitments, or other obligations, or its deposits, reserves, other liabilities attributable or allocated thereto, or impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note (if any) or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder with respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote (if any) with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated pay, or shall cause another Borrower to pay pay, to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender, other than a Defaulting Lender, shall have determined that, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such AgentLaw, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to Lender will promptly notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing the calculation thereof in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) ), with any request or directive (whether or not having the force of law) of any Governmental Authority such authority, central bank or comparable agency exercising control over banks or financial institutions generally issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, the Administrative Agent or such Lender becomes an Agent, an Issuing Bank the Administrative Agent or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related to any Loan, Reimbursement Obligation, Eurodollar Loan or its obligation to advance or maintain Loans or issue any Letter of CreditEurodollar Loans, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation Eurodollar Loans or any participations in any thereof, or any other amounts due under this Agreement or any other Credit Document related to its Loans, Letters of Credit, Reimbursement Obligations Eurodollar Loans or participations therein, or its obligation to make Loans, issue Letters of Credit, Eurodollar Loans or acquire participations therein (other than, in each case, (A) except for changes with respect to taxes that are not Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxespursuant to Section 3.3);; or
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding for any Eurodollar Loan any such requirement included in an applicable Statutory Reserve Rate) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, Eurodollar Loans or its participations participation in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit Eurodollar Loans or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing advancing or maintaining any Eurodollar Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Noteany other Credit Document, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c8.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, the Administrative Agent or any AgentLender shall have reasonably determined that the adoption after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital adequacy rules heretofore adopted and issued by any governmental authority), or any Issuing Bank reasonably determines that a Change change after the date hereof in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Administrative Agent or any Lender (or Issuing Bank its applicable Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s’s capital, Issuing Bank’s capital or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Bankits controlling corporation’s policies and the policies of with respect to capital adequacy in effect immediately before such Lender’s adoption, change or Issuing Bank’s holding companycompliance) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c8.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company Borrower may prepay all SOFR Eurodollar Loans of such Lender or obtain the cancellation of all such Letters of CreditLender.
(c) Each of the Agents, the Lenders The Administrative Agent and the Issuing Banks each Lender that determines to seek compensation or additional interest under this Section 9.3 8.3 or Section 2.11 shall give written notice to the Company Borrower and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, the Administrative Agent or such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, the Administrative Agent or such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company Borrower shall not have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, except if the basis law, rule, order or circumstances in respect of this Section 9.3 interpretation giving rise to such request for compensation is retroactivehas retroactive effect, then such ninety (90-) day period referred to in this sentence shall be extended to include the period with such retroactive effect thereofperiod. Each of the Agents, the Lenders The Administrative Agent and the Issuing Banks each Lender shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, additional interest, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, the Administrative Agent or such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company Borrower under this Section 9.38.3 or Section 2.11, and provided further that no Lender shall be obligated to make its Eurodollar Loans hereunder at any office located in the United States of America. A certificate of any Agent, any Lender the Administrative Agent or any Issuing BankLender, as applicable, claiming compensation or additional interest under this Section 9.38.3 or Section 2.11, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, the Administrative Agent or such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Transocean Inc)
Increased Cost and Reduced Return. (a) IfIf the adoption after the date hereof of any applicable law, a Change rule or regulation, or any change therein after the date hereof, or any change after the date hereof in Lawthe interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any AgentAmsterdam Funding Source, the Agent or any Lender or Issuing Bank Purchaser (or its applicable Lending Officecollectively, the “Funding Parties”) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof of any such Governmental Authority (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
“Regulatory Change”) (ia) subjects any Lender or Issuing Bank (or its applicable Lending Office) Funding Party to any Taxadditional charge or withholding on or in connection with the Transfer Agreement or this Agreement (collectively, duty the “Funding Documents”) or other charge related to any LoanReceivable, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change (b) changes the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal Funding Parties of any amounts payable under any of the Funding Documents, other than (i) any Taxes referred to in Section 6.4 or interest (ii) any Taxes imposed on its Loans, Letters or measured by the net income of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casethe Funding Party, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties, (d) has the effect of reducing the rate of return on such Funding Party’s capital to a level below that which such Funding Party could have achieved but for such adoption, change or Issuing Bank compliance (or its applicable Lending Officetaking into consideration such Funding Party’s policies concerning capital adequacy) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iiie) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is (x) to impose a cost on, or increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Funding Party of participating in, issuing or maintaining its commitment under any Letter of Credit (Funding Document or of purchasing, maintaining its obligation to participate in or to issue funding any Letter of Credit)interest acquired under any Funding Document, or (y) to reduce the amount of any sum received or receivable by, or to reduce the rate of return of, any Funding Party under any Funding Document or (z) to require any payment calculated by such Lender reference to the amount of interests held or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit hereunder, then, subject to Section 9.3(c)upon demand by the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy the Seller shall pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and Agent for the basis thereof, account of the Company shall be obligated to pay to such Lender or Issuing Bank Person such additional amount or amounts as will compensate the Agent or such Lender or Issuing Bank Purchaser (or, in the case of Amsterdam, will enable Amsterdam to compensate any Amsterdam Funding Source) for such increased cost or reduction.
(b) If. Notwithstanding the foregoing, after the date hereof, no Person shall be entitled to receive any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of extent that such amount relates to an increased cost or reduction incurred for a Lender or an Issuing Bank other date that is more than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) 180 days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding date that the Seller first receives notice thereof, provided, that if such written demand; provided thatincreased cost or reduction is imposed retroactively, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90180-day period referred to in this sentence shall be extended to include the period with of the retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Receivables Sale Agreement (Albany International Corp /De/)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law but, if not having the force of law, compliance with which is customary in the relevant jurisdiction) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer to any Taxtax, duty or other charge related with respect to its Eurocurrency Loans, its Notes, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation, Obligations owed to it or its obligation to advance or maintain Loans or make Eurocurrency Loans, issue any a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer of the principal of or interest on its Eurocurrency Loans, Letters Letter(s) of Credit Credit, or Reimbursement Obligation or any participations in any thereof, therein or any other amounts due under this Agreement related to in respect of its Eurocurrency Loans, Letters Letter(s) of Credit, Reimbursement Obligations or participations therein, any Reimbursement Obligations owed to it, or its obligation to make Eurocurrency Loans, issue Letters a Letter of Credit, or acquire participations therein (other than, except for changes in each case, the rate of tax on the overall net income or profits of such Lender (A) Indemnified Taxes, (B) Taxes described in clauses (bor its Lending Office) or the L/C Issuer imposed by the jurisdiction in which such Lender (cor its Lending Office) of or the definition of “Excluded Taxes” and L/C Issuer is incorporated or in which such Lender’s or L/C Issuer’s principal executive office or (CLending Office) Connection Income Taxesis located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurocurrency Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or the L/C Issuer or shall impose on any Lender (or its Lending Office) or the L/C Issuer or on the interbank market any other condition affecting its SOFR Eurocurrency Loans, Letters its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Eurocurrency Loans, to issue a Letter of Credit, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer of making, converting to, continuing making or maintaining any Eurocurrency Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith the L/C Issuer under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank the L/C Issuer to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender or Issuing Bank the L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank the L/C Issuer such additional amount or amounts as will compensate such Lender or Issuing Bank the L/C Issuer for such increased cost or reduction; provided, however, that such Lender or the L/C Issuer shall promptly notify the Borrower of an event which might cause it to seek compensation, and the Borrower shall be obligated to pay only such compensation which is incurred or which arises after the date ninety (90) days prior to the date such notice is given; provided further that, if such event giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof, but not more than an additional 180 days and not for any period prior to the Effective Date. In the event any law, rule, regulation or interpretation described above is revoked, declared invalid or inapplicable or is otherwise rescinded, and as a result thereof a Lender or the L/C Issuer is determined to be entitled to a refund from the applicable authority for any amount or amounts which were paid or reimbursed by the Borrower to such Lender or the L/C Issuer hereunder, such Lender or the L/C Issuer shall refund such amount or amounts to the Borrower without interest.
(b) If, after the date hereof, any AgentLender, the L/C Issuer, or the Administrative Agent shall have determined that the adoption of or any change in any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its Lending Office) or the L/C Issuer or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of corporation controlling such Lender or such Lender’s L/C Issuer with any request or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have had the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or L/C Issuer’s or such corporation’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank L/C Issuer or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing BankL/C Issuer’s or such corporation’s policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank L/C Issuer or such corporation to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank L/C Issuer, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer or such corporation for such reduction suffered or the Company may prepay all SOFR Loans of reduction; provided, however, that such Lender or obtain the cancellation L/C Issuer shall promptly notify the Borrower of all an event which might cause it to seek compensation, and the Borrower shall be obligated to pay only such Letters compensation which is incurred or which arises after the date ninety (90) days prior to the date such notice is given; provided further that if such event giving rise to such reduced return is retroactive then the 90-day period referred to above shall be extended to include the period of Creditretroactive effect thereof, but not more than an additional 180 days and not for any period prior to the Effective Date.
(c) Each of Lender or the Agents, the Lenders and the Issuing Banks L/C Issuer that determines to seek compensation under this Section 9.3 shall give written notice to notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, Borrower and the Administrative Agent of the circumstances that entitle such Agent, such the Lender or such Issuing Bank the L/C Issuer to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole reasonable judgment of such Agent, such Lender or such Issuing Bank made in good faiththe L/C Issuer, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any such Lender or any Issuing Bank or the obligations of the Company under this Section 9.3L/C Issuer. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, the L/C Issuer claiming compensation under this Section 9.3, 9.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank the L/C Issuer may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) made after the Closing Date of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects shall subject any Lender or Issuing Bank to any tax on its capital reserves (or its applicable Lending Officeany similar tax) with respect to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation this Agreement or any participations Eurodollar Loan made by it (except for Non-Excluded Taxes and Other Taxes covered by Section 8.4 and changes in any thereof, the rate of tax on the overall net income or any other amounts due under this Agreement related to its Loans, Letters profits of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxessuch Bank);
; (ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System (but excluding with respect to any Eurodollar Loan any such requirement reflected in an applicable Eurodollar Reserve Percentage)), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes (iii) shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the interbank market any other condition materially more burdensome in nature, extent or consequence than those in existence as of the date hereof affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, such Bank’s Eurodollar Loans or its obligation to advance or maintain SOFR make Eurodollar Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Eurodollar Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect to such Eurodollar Loans, by an amount deemed reasonable determined by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts (based upon a reasonable allocation thereof by such Bank to the Eurodollar Loans made by such Bank hereunder) as will compensate such Lender or Issuing Bank for such increased cost or reductionreduction to the extent such Bank generally imposes such additional amounts on other borrowers of such Bank in similar circumstances; provided however, that notwithstanding anything herein to the contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and Basel III all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a change in law, regardless of the date enacted, adopted or issued.
(b) IfIf any Bank shall have reasonably determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) made after the Closing Date of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or to the Company may prepay all SOFR Loans extent such Bank generally imposes such additional amounts on other borrowers of such Lender or obtain the cancellation of all such Letters of CreditBank in similar circumstances.
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole reasonable judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that such Bank. Notwithstanding the foregoing foregoing, if such Bank shall not in any way affect fail to notify the rights Borrower of any Lender or any Issuing Bank or such event within ninety (90) days following the obligations end of the Company under month during which such event occurred, then the Borrower’s liability for any amounts described in this Section 9.3incurred by such Bank as a result of such event shall be limited to those attributable to the period occurring subsequent to the ninetieth (90th) day prior to, but excluding, the date upon which such Bank actually notified the Borrower of the occurrence of such event. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth a reasonably detailed calculation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofdemonstrable error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) If at any time, any Bank has demanded compensation pursuant to this Section 8.3, the Borrower shall have the right, upon five (5) Business Day’s notice to the Administrative Agent to either (x) in accordance with Section 9.6(c), cause an Assignee to offer to purchase the Loans of such Bank for an amount equal to such Bank’s outstanding Loans plus accrued interest, fees and other amounts due to such Bank, and to become a Bank hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the Loans of such Bank for such amount, which offer such Bank is hereby required to accept, or (y) to repay in full all Loans then outstanding of such Bank, together with interest and all other amounts due thereon.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after --------------------------------- (x) the date hereof, a Change in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule, regulation or treaty, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Applicable Lending Office) to any Taxtax, duty or other charge related with respect to any Loanits Fixed Rate Loans, Reimbursement Obligation, its Notes or its obligation to advance or maintain Loans or issue any Letter of Creditmake Fixed Rate Loans, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Fixed Rate Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, Fixed Rate Loans or its obligation to make Loans, issue Letters Fixed Rate Loans (except for changes in the rate of Credittax imposed, or acquire participations therein (other thanthe imposition of tax, on the overall net income of such Bank or its Applicable Lending Office imposed by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Bank's principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesApplicable Lending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (A) with respect to any CD Loan any such requirement included in an applicable Domestic Reserve Percentage and (B) with respect to any Euro-Dollar Loan or Money Market LIBOR Loan, any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.16), special deposit, insurance assessment (excluding, with respect to any CD Loan, any such requirement reflected in an applicable Assessment Rate) or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance or maintain SOFR make Fixed Rate Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company applicable Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfWithout duplication of any amounts paid under subsection (a) above or any amounts included in an applicable Domestic Reserve Percentage or amounts for which any Bank is entitled to compensation during the relevant Interest Period under Section 2.16, if any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company applicable Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Bank will promptly notify the Agents, the Lenders Company and the Issuing Banks that determines Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder that is signed by an officer of such Bank with knowledge of and accompanied by responsibility for such matters and that sets forth such amount or amounts and a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail explanation of the calculations thereof basis therefor shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Hancock John Financial Services Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any obligation to make Committed Loans, or (y) the date of the related Bid, in the case of any Bid Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of lawlaw if of the type generally complied with by such Bank in accordance with its banking practices) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related with respect to any Loanits Fixed Rate Loans, Reimbursement Obligation, its Notes or its obligation to advance or maintain make Fixed Rate Loans or its obligation to issue any Letter or participate in Letters of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Fixed Rate Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, Fixed Rate Loans or its obligation to make Loans, Fixed Rate Loans or its obligation to issue or participate in Letters of Credit, Credit (except for changes in the rate of tax on the overall net income of such Bank or acquire participations therein (other than, its Lending Office imposed by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Bank's principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesLending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement requirements (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, such as, for example, a change in official reserve requirements, but excluding (A) with respect to any Adjusted CD Rate Loan, any such requirement to the extent included in the CD Reserve Percentage used in computing the Adjusted CD Rate for such Loan and (B) with respect to any Eurocurrency Loan, any such requirement to the extent included in the Eurocurrency Reserve Percentage used in computing the Adjusted LIBOR for such Loan) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the United States market for certificates of deposit or the interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance or maintain SOFR make Fixed Rate Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to issue or participate in or to issue any Letter Letters of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days then after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrowers shall be obligated to promptly pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction. In determining such amount, the Bank may use any reasonable averaging and attribution methods.
(b) If, If any Bank shall determine that the adoption after the date hereofhereof of any applicable law, any Agentrule or regulation regarding capital adequacy, any Lender or any Issuing change in any existing law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Bank reasonably determines that a Change in Law affecting such Agent, Lender (or Issuing Bank any of its branches) with any request or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank or any Person controlling such Bank as a consequence of this Agreement, such Bank's obligations hereunder or for the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or credit which is the Letters of Credit issued by any Issuing Bank, subject matter hereof to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s Bank or Issuing Bank’s holding companyany Person controlling such Bank with respect to liquidity and capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty fifteen (3015) days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereofBank, the Company Borrowers shall pay to the Agent for the account of such Lender or Issuing Bank such additional amount or amounts reasonably determined by such Bank as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Titan Wheel International Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) Effective Date, a Change in Lawthe case of any Committed Loan or Letter of Credit or any obligation to make Committed Loans or issue or participate in any Letter of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Currency Loan any such requirement included in an applicable Euro-Currency Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Loans, Fixed Rate Loans or Letters of CreditCredit Liabilities, any Reimbursement Obligations owed to it, or of its participations in any thereof, Notes or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under any of its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated pay, or cause the relevant Borrower to pay pay, to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after Effective Date, the date hereofadoption of any applicable law, any Agentrule or regulation regarding capital adequacy, any Lender or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or reduction, provided that no such demand by any Bank shall include any period commencing earlier than 90 days prior to the Company may prepay all SOFR Loans date of such Lender or obtain the cancellation of all such Letters of Creditdemand.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to Bank will promptly notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of the circumstances that any event of which it has knowledge, occurring after Effective Date, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) If at any time any Subsidiary that is incorporated in, or conducts business in, a jurisdiction outside the United States becomes an Eligible Subsidiary, all applicable laws, rules and regulations then in effect in such jurisdiction shall be deemed for purposes of Section 8.03(a) to have been adopted at such time and all applicable requests and directives theretofore made by any governmental authority, central bank or comparable agency in such jurisdiction shall be deemed for purposes of Section 8.03(a) to have been made at such time; provided that no Bank shall be obligated under Section 8.03(c) to give notice of any such law, rule, regulation, request or directive, or to designate a different Applicable Lending Office by reason thereof, until an officer of such Bank responsible for administering this Agreement shall have become aware of such law, rule, regulation, request or directive and the relevant consequences thereof.
Appears in 1 contract
Samples: Credit Agreement (Allergan Inc)
Increased Cost and Reduced Return. (a) If, a on or after the date hereof, any Change in Law, or compliance by :
(i) shall subject any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) Administrative Agent to any Taxtax, duty or other charge related with respect to its Loans, its Notes, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation, Obligations owed to it or its obligation to advance or maintain Loans or make Loans, issue any a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) or the Administrative Agent of the principal of or interest on its Loans, Letters Letter(s) of Credit Credit, or Reimbursement Obligation or any participations in any thereof, therein or any other amounts due under this Agreement related to in respect of its Loans, Letters Letter(s) of Credit, Reimbursement Obligations or participations therein, any Reimbursement Obligations owed to it, or its obligation to make Loans, issue Letters a Letter of Credit, or acquire participations therein (other than, except for changes in each case, (A) Indemnified Taxes, (B) Taxes described the rate of tax on the overall net income or profits of such Bank or its Lending Office or the Administrative Agent imposed by the jurisdiction in clauses (b) which such Bank or (c) of its Lending Office or the definition of “Excluded Taxes” and (C) Connection Income TaxesAdministrative Agent is incorporated or in which such Bank’s principal executive office or Lending Office or the Administrative Agent is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge liquidity or similar requirement (including, without limitation, any compulsory loan requirement, insurance charge or other assessment or any other such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurodollar Loans or Daily Eurodollar Loans any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Eurodollar Loans, Letters its Daily Eurodollar Loans, its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Eurodollar Loans or Daily Eurodollar Loans, to issue a Letter of Credit, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or the Administrative Agent of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith the Administrative Agent under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender Bank or Issuing Bank the Administrative Agent to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and or the basis thereofAdministrative Agent, the Company Borrower shall be obligated to pay to such Lender Bank or Issuing Bank the Administrative Agent such additional amount or amounts as will compensate such Lender Bank or Issuing Bank the Administrative Agent for such increased cost or reduction. In the event any law, rule, regulation or interpretation described above is revoked, declared invalid or inapplicable or is otherwise rescinded, and as a result thereof a Bank or the Administrative Agent is determined to be entitled to a refund from the applicable authority for any amount or amounts which were paid or reimbursed by the Borrower to such Bank or the Administrative Agent hereunder, such Bank or the Administrative Agent shall refund such amount or amounts to the Borrower without interest.
(b) If, after the date hereof, any Agent, Bank or the Administrative Agent shall have determined that any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agentregarding capital adequacy or liquidity requirements, Lender or Issuing Bank any change therein (including, without limitation, any revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or [Senior Secured Revolving Credit Agreement] of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding other applicable capital or liquidity requirements rules heretofore adopted and issued by any governmental authority), or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law but, if not having the force of law, compliance with which is customary in the applicable jurisdiction) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital capital, or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies with respect to capital adequacy and the policies of such Lender’s or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty fifteen (3015) days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks Bank that determines to seek compensation under this Section 9.3 shall give written notice to notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, Borrower and the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing the Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, 9.3 and setting forth the additional amount or amounts to be paid to it hereunder submitted to the Borrower and accompanied by a statement prepared the Administrative Agent by such Agent, such Lender or such Issuing Bank, as applicable, describing Bank in reasonable detail the calculations thereof good faith shall be prima facie evidence of the correctness thereofamount of such compensation. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) case of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, Committed Loan or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain make Syndicated Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations participate in any thereof, Swingline Loan or (y) the date of any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other thanCompetitive Bid Quote, in the case of any Competitive Bid Loan (in each case, (A) Indemnified Taxes, (B) Taxes case described in clauses (bx) or (c) of the definition of “Excluded Taxes” and (Cy) Connection Income Taxesand subject to clause (e) below, the “Applicable Date”);
(ii) imposes, modifies any Change in Law shall impose, modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or make Fixed Rate Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated pay, or shall cause another Borrower to pay to pay, such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reductionreduction (other than any increased cost or reduction attributable to any tax, which shall be governed exclusively by Section 8.03(b) or Section 8.04, as applicable).
(b) IfIf (x) any Lender shall have determined that, after the date hereofApplicable Date, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent(other than with respect to taxes, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding but including as to capital or adequacy and liquidity requirements requirements) has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies with respect to capital adequacy and the policies of such Lender’s or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank to be materialmaterial or (y) any Lender or the Administrative Agent shall have determined, thenafter the Applicable Date, subject any Change in Law has or would have the effect of subjecting any Lender or the Administrative Agent to any taxes (other than (A) Taxes for which any Obligor is required to indemnify the Lender or Administrative Agent pursuant to Section 9.3(c8.04(b) or Section 8.04(d), or would be required to indemnify the Lender or Administrative Agent but is not so required because an exclusion in Section 8.04(b)(ii), 8.04(b)(iv) or 8.04(d)(ii) applies, (B) taxes excluded from the definition of “Taxes” by reason of any of clauses (a) through (d) of such definition, (C) Other Taxes and Assignment Taxes excluded from the definition of “Other Taxes,” (D) Taxes and Other Taxes that any Obligor is not required to indemnify the Lender for pursuant to Section 8.04(h) and (E) amounts for which any Obligor is required to pay the Lender or Administrative Agent pursuant to Section 8.04(m)(ii) or (iii)) with respect to its Loans, Commitments or other obligations with respect to this Agreement, or its deposits, reserves, other liabilities or capital attributable thereto, then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company applicable Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credittaxes.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Linde PLC)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) ), with any request or directive (whether or not having the force of law) of any Governmental Authority such authority, central bank or comparable agency exercising control over banks or financial institutions generally issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, the Administrative Agent or such Lender becomes an Agent, an Issuing Bank the Administrative Agent or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, Eurocurrency Loan or its obligation to advance or maintain Loans or issue any Letter of CreditEurocurrency Loans, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation Eurocurrency Loans or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or Eurocurrency Loans participations therein, or its obligation to make Loans, issue Letters of Credit, Eurocurrency Loans or acquire participations therein (other than, in each case, (A) except for changes with respect to Taxes that are not Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxespursuant to Section 3.3);; or
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding for any Eurocurrency Loan any such requirement included in an applicable Statutory Reserve Rate) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations Eurocurrency Loans owed to it, or its participations participation in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit Eurocurrency Loans or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing advancing or maintaining any Eurocurrency Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c8.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, the Administrative Agent or any AgentLender shall have reasonably determined that the adoption after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital adequacy rules heretofore adopted and issued by any governmental authority), or any Issuing Bank reasonably determines that a Change change after the date hereof in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Administrative Agent or any Lender (or Issuing Bank its applicable Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s’s capital, Issuing Bank’s capital or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Bankits controlling corporation’s policies and the policies of with respect to capital adequacy in effect immediately before such Lender’s adoption, change or Issuing Bank’s holding companycompliance) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c8.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company Borrower may prepay all SOFR Eurocurrency Loans of such Lender or obtain the cancellation of all such Letters of CreditLender.
(c) Each of the Agents, the Lenders The Administrative Agent and the Issuing Banks each Lender that determines to seek compensation or additional interest under this Section 9.3 8.3 shall give written notice to the Company Borrower and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, the Administrative Agent or such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, the Administrative Agent or such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company Borrower shall not have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders The Administrative Agent and the Issuing Banks each Lender shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, additional interest, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, the Administrative Agent or such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company Borrower under this Section 9.38.3, and provided further that no Lender shall be obligated to make its Eurocurrency Loans hereunder at any office located in the United States of America. A certificate of any Agent, any Lender the Administrative Agent or any Issuing BankLender, as applicable, claiming compensation or additional interest under this Section 9.38.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender the Administrative Agent or such Issuing BankLender, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Transocean Inc)
Increased Cost and Reduced Return. (a) IfIf the adoption after the date hereof of any applicable law, a Change rule or regulation, or any change therein after the date hereof, or any change after the date hereof in Lawthe interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any AgentWindmill Funding Source, the Agent or any Lender or Issuing Bank Purchaser (or its applicable Lending Officecollectively, the "Funding Parties") with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof of any such Governmental Authority (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
"Regulatory Change") (ia) subjects any Lender or Issuing Bank (or its applicable Lending Office) Funding Party to any Taxadditional charge or withholding on or in connection with a Funding Agreement or this Agreement (collectively, duty the "Funding Documents") or other charge related to any LoanReceivable, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change (b) changes the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal Funding Parties of any amounts payable under any of the Funding Documents, other than any Taxes imposed on or interest on its Loans, Letters measured by the net income of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casethe Funding Party, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties, (d) has the effect of reducing the rate of return on such Funding Party's capital to a level below that which such Funding Party could have achieved but for such adoption, change or Issuing Bank compliance (or its applicable Lending Officetaking into consideration such Funding Party's policies concerning capital adequacy) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iiie) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is (x) to impose a cost on, or increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Funding Party of participating in, issuing or maintaining its commitment under any Letter of Credit (Funding Document or of purchasing, maintaining its obligation to participate in or to issue funding any Letter of Credit)interest acquired under any Funding Document, or (y) to reduce the amount of any sum received or receivable by, or to reduce the rate of return of, any Funding Party under any Funding Document or (z) to require any payment calculated by such Lender reference to the amount of interests held or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit hereunder, then, subject to Section 9.3(c)upon demand by the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy the Seller shall pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and Agent for the basis thereof, account of the Company shall be obligated to pay to such Lender or Issuing Bank Person such additional amount or amounts as will compensate the Agent or such Lender or Issuing Bank Purchaser (or, in the case of Windmill, will enable Windmill to compensate any Windmill Funding Source) for such increased cost or reduction.
. Notwithstanding the foregoing, the Seller shall only be obligated to a Windmill Funding Source under this Section to the extent Windmill is obligated to reimburse the Windmill Funding Source for the applicable amount (b) If, after the date hereof, it being understood that any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting limitations on recourse to Windmill for such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence amounts do not limit Windmill's obligations for purposes of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative AgentSection) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case terms of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsFunding Agreement.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any change therein, or any change in Lawthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related with respect to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its LIBOR Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations thereinNotes, or its obligation to make LIBOR Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any LIBOR Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR LIBOR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereofNotes, or its obligation to advance make LIBOR Loans; or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or#92469623v14 61
(iii) imposes on shall subject any Lender (or its Lending Office) to any Issuing Bank or the London interbank market any other condition, cost or expense Taxes (other than taxes(A) affecting this Agreement Indemnified Taxes and (B) Excluded Taxes) on its Loans, its Notes, or Loans made by such Lender its obligation to make any Loans, or Issuing Bank its deposits, reserves, other liabilities or any Letter of Credit or participation thereincapital attributable thereto; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any LIBOR Loan, or, in the case of Taxes, any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit)therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Noteunder any other Loan Document with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided that such amounts shall be no greater than amounts that such Lender is generally charging other borrowers or account parties similarly situated to and of similar creditworthiness to the Borrower.
(b) If, after the date hereof, any AgentLender or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy or liquidity (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its Lending Office) or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of corporation controlling such Lender with any request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have had the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or such corporation’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Banksuch corporation’s policies and the policies of such Lender’s with respect to capital adequacy or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of reduction; provided that such amounts shall be no greater than amounts that such Lender is generally charging other borrowers or obtain account parties similarly situated to and of similar creditworthiness to the cancellation of all such Letters of CreditBorrower.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case A certificate of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, 10.4 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereofconclusive if reasonably determined. In determining such amount, subject to the provisos at the end of clauses (a) and (b) above, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Notwithstanding the foregoing, (a) the Borrower shall not be obligated to compensate any Lender for any increased costs or reductions incurred more than 90 days prior to the date the Lender, as the case may be, 62 #92469623v14 62 notifies the Borrower of its intention to claim compensation therefor and (b) no Lender shall be entitled to claim any amounts pursuant to this Section 10.4, unless such Lender is then generally claiming or generally will claim such amounts in similar circumstances under comparable credit facilities with similar provisions to this Section 10.4 to which it is a party with borrowers that are similarly situated to and of similar creditworthiness to the Borrower.
Appears in 1 contract
Samples: Credit Agreement (J M SMUCKER Co)
Increased Cost and Reduced Return. If after the date hereof, in the case of any Committed Loan, Swingline Loan, Letter of Credit, Reimbursement Obligation or any obligation to make Committed Loans or to issue Letters of Credit, the adoption of any applicable law, rule or regulation, including without limitation any statute, directive, guideline and decision, or any change in any applicable law, rule or regulation (a) Ifincluding statutes, a Change directives, guidelines and decisions), or any change in Lawthe interpretation or administration thereof by governmental authority, central bank, comparable agency, instrumentality, regulatory body, or other entity exercising executive, legislative, judicial, taking, regulatory or administrative powers or functions of or pertaining to the government, charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued such governmental authority, central bank, comparable agency, instrumentality, regulatory body, or other entity exercising executive, legislative, judicial, taking, regulatory or administrative powers or functions of or pertaining to the government adopted after the date hereof (orprovided however, if laterthat notwithstanding anything herein to the contrary, the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith shall be deemed to have been enacted, adopted or issued after the date such Agentof this Agreement, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) regardless of the principal of date enacted, adopted or interest on its Loansissued (even if enacted, Letters of Credit adopted or Reimbursement Obligation issued before the date hereof)) shall impose, modify or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Euro-Dollar Loans, Letters of Creditits Note, any its Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance make Euro-Dollar Loans or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Euro-Dollar Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its Note, if any, with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If; provided, after however, that the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to Borrower shall not be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation obligated to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances amounts in respect of this Section 9.3 giving rise to such compensation is retroactivetaxes, then such 90-day period referred to in this sentence which shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under governed exclusively by Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods8.04.
Appears in 1 contract
Samples: Credit Agreement (Con-Way Inc.)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency shall:
(i) subjects any Lender impose, modify or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, including any such requirement imposed by the Federal Board or any similar Governmental Authority, but excluding with respect to any Euro-Currency Loan any such requirement included in an applicable Euro-Currency Reserve Board) Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office);
(ii) subject any Bank or Issuing Bank to any Taxes (other than (A) Taxes on payments under this Agreement, (B) Other Taxes and (C) Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Bank (or its Applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance or maintain SOFR make Fixed Rate Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower or Additional Borrower, as the case may be, shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided that the Borrower or such Additional Borrower shall not be obligated to compensate such Bank for any increased cost or reduction incurred more than 60 days prior to the receipt by the Borrower or such Additional Borrower of the notice contemplated by subsection (c) below (except that, if the applicable event giving rise to such increased costs or reductions is retroactive, then the 60-day period referred to above shall be extended to include the period of retroactive effect thereof). The Banks acknowledge and agree that the foregoing subsection (a) creates no right to demand payment of additional amounts in respect of laws, rules and regulations, as in effect and interpreted and administered on the date hereof. For purposes of clause (ii) of this Section 8.3(a), the term “Bank” includes the Administrative Agent.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy or liquidity, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any Governmental Authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 30 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower or Additional Borrower, as the case may be, shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing its Parent) for such reduction; provided that the Borrower or such Additional Borrower shall not be obligated to compensate such Bank for any reduction incurred more than 60 days prior to the receipt by the Borrower or such reduction suffered or Additional Borrower from such Bank of the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
notice contemplated by subsection (c) Each of below (except that, if the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another applicable event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation reductions is retroactive, then such 90the 60-day period referred to in this sentence above shall be extended to include the period with of retroactive effect thereof). The Banks acknowledge and agree that the foregoing subsection (b) creates no right to demand payment of additional amounts in respect of laws, rules and regulations regarding capital adequacy as in effect and interpreted and administered on the date hereof.
(c) Each of Bank will notify the Agents, the Lenders Borrower and the Issuing Banks shall use reasonable efforts Administrative Agent within 90 days of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to itsuch Bank; provided that the foregoing if a Bank shall not in have so notified the Borrower within 90 days of such event, such Bank may not seek compensation for any way affect period beginning prior to the rights date upon which the Borrower is notified of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such event. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the calculation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) Notwithstanding anything herein to the contrary, for purposes of paragraphs (a) and (b) of this Section 8.3, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case, pursuant to Basel III, shall be deemed to be a change in law, rule or regulation regardless of the date enacted, adopted, promulgated or issued; provided that a Bank may be compensated under paragraph (a) or (b) of this Section 8.3 for any change in law, rule or regulation described in this paragraph (d) only if such Bank requests compensation for increased costs associated with any such change in law, rule or regulation from similarly-situated borrowers under comparable credit facilities.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge Tax related to any Term Benchmark Loan, Reimbursement Obligation, or its obligation to advance or maintain Term Benchmark Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank Credit (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casecase other than (a) Taxes described in Sections 3.3(a)(i) through (vi), (Ab) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxesany taxes governed by Section 11.3 or Section 11.4);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Term Benchmark Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Term Benchmark Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxesTaxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such LenderXxxxxx’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company Borrower may prepay all SOFR Term Benchmark Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company Borrower and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company no Borrower shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth (90th) day preceding such written demand; provided that, that if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company Borrower under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Seadrill LTD)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or Letters of Credit or any obligation to make Committed Loans or issue or participate in Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(iA) subjects shall subject any Lender or Issuing Bank (or its applicable Applicable Lending Office) to any Taxtax, duty or other charge related with respect to any Loanits Fixed Rate Loans or the Letters of Credit, Reimbursement Obligation, its Note or its obligation to advance or maintain make Fixed Rate Loans or issue any Letter its obligations hereunder in respect of Letters of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Fixed Rate Loans or the Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to in respect of its Loans, Fixed Rate Loans or the Letters of Credit, Reimbursement Obligations or participations therein, Credit or its obligation to make Loans, issue Fixed Rate Loans or its obligations hereunder in respect of Letters of CreditCredit (except for taxes based on or measured in whole or in part by the gross income, net income, gross revenue or acquire participations therein (other than, gross receipts of such Lender or its Applicable Lending Office imposed by the jurisdiction in each case, (A) Indemnified Taxes, which such Lender’s principal executive office or Applicable Lending Office is located); or
(B) Taxes described in clauses (b) shall impose, modify or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (y) with respect to any Euro-Dollar Loan any such requirement with respect to which such Lender is entitled to compensation during the relevant Interest Period under Section 8.03(d) and (z) any such requirement with respect to which such Lender is entitled to compensation pursuant to Section 8.03(b)), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit (including Letters of Credit and participations therein) extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Loans, Fixed Rate Loans or the Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation thereinCredit; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining participating in any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter Letters of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith such Issuing Bank under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or such Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or such Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or such Issuing Bank such additional amount or amounts as will compensate such Lender or such Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction, provided that the Borrower shall not be obligated to compensate any Lender (or its Parent) in respect of any such reduction suffered in respect of periods more than six months prior to the date on which such Lender shall have notified the Borrower of its intention to demand such compensation and setting forth the amount or the Company may prepay all SOFR Loans specific basis of such Lender or obtain the cancellation of all such Letters of Creditcomputation thereof.
(c) Each of Lender will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, Lender to compensation pursuant to Section 8.03 or (b) and will designate a different Applicable Lending Office if such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) The Borrower shall pay for the account of each Lender on the last day of each Interest Period with respect to any Euro-Dollar Loan (and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof), if at any time during such Interest Period such Lender shall be required to maintain (and shall maintain in amounts deemed by such Lender to be material) reserves against any category of liabilities which includes deposits by reference to which the interest rate on Euro-Dollar Loans is determined as provided in this Agreement or against any category of extensions of credit or other assets of such Lender which includes loans by a non-United States office of such Lender to United States residents (including without limitation reserves against “Eurocurrency liabilities” under Regulation D), an additional amount (determined by such Lender and notified to the Borrower and the Administrative Agent) equal to the product of the following for each day during such Interest Period:
(i) the principal amount of the Euro-Dollar Loan of such Lender to which such Interest Period relates outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the applicable London Interbank Offered Rate (expressed as a decimal) and the denominator of which is one minus the stated rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender on such day minus (y) such numerator; and
Appears in 1 contract
Samples: Credit Agreement (Marathon Oil Corp)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or Letter of Credit or any obligation to make Committed Loans or issue or participate in any Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency, after the date such Agentshall impose, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Dollar Loan any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.15), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit (including letters of credit and participations therein) extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Loans, Fixed Rate Loans or other Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith such Issuing Bank under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender Bank or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender Bank or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company each Borrower shall be obligated to pay to such Lender Bank or Issuing Bank its Appropriate Share of such additional amount or amounts as will compensate such Lender Bank or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company each Borrower shall pay to such Lender or Issuing Bank its Appropriate Share of such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Bank will promptly notify the Agents, the Lenders Borrowers and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any change therein, or any change in Lawthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) or any L/C Issuer (or its Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects any Lender shall impose, modify or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any LIBOR Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes any L/C Issuer (or its Lending Office) or shall impose on any Lender (or Issuing Bank its Lending Office) or any L/C Issuer (or its Lending Office) or on the interbank market any other condition affecting its SOFR LIBOR Loans, Letters its Notes, its CAD CDOR Loans, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations obligation to make LIBOR Loans or CAD CDOR Loans, or to issue a Letter of Credit, or to participate therein; or
(ii) shall subject any Lender (or its Lending Office) or any L/C Issuer (or its Lending Office) to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its Loans, its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligation owed to it, or on its obligation to advance or maintain SOFR make Loans, or to issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any a Letter of Credit Credit, or participation to participate therein, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or such L/C Issuer (or its Lending Office) of making, converting to, continuing making or maintaining any LIBOR Loan or CAD CDOR Loans (or in the case of Taxes, any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in), issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) or such L/C Issuer (whether of principal, interest or any other amountits Lending Office) in connection therewith under this Agreement or its Noteunder any other Loan Document with respect thereto, by an amount deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company U.S. Borrower shall be obligated pay or cause the relevant Loan Party to pay to such Lender or Issuing Bank L/C Issuer such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such increased cost or reduction; provided that such amounts shall be no greater than amounts that such Lender or L/C Issuer is generally charging other borrowers or account parties similarly situated to and of similar creditworthiness to the Borrowers.
(b) If, after the date hereof, any AgentLender, any Lender L/ C Issuer, or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy or liquidity (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or Issuing Bank its Lending Office) or [Senior Secured Revolving Credit Agreement] any lending office of L/C Issuer (or its Lending Office) or any corporation controlling such Lender or such Lender’s L/C Issuer with any request or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have had the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or L/C Issuer’s or such corporation’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank L/C Issuer or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing BankL/C Issuer’s or such corporation’s policies and the policies of such Lender’s with respect to capital adequacy or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company each Borrower shall pay to such Lender or Issuing Bank L/C Issuer, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such reduction suffered or the Company may prepay all SOFR Loans of reduction; provided that such amounts shall be no greater than amounts that such Lender or obtain L/C Issuer is generally charging other borrowers or account parties similarly situated to and of similar creditworthiness to the cancellation of all such Letters of CreditBorrowers.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case A certificate of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, L/C Issuer claiming compensation under this Section 9.3, 10.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereofconclusive if reasonably determined. In determining such amount, subject to the provisos at the end of clauses (a) and (b) above, such Lender or such Issuing Bank L/C Issuer may use any reasonable averaging and attribution methods. Notwithstanding the foregoing, the Borrowers shall not be obligated to compensate any Lender or L/C Issuer for any increased costs or reductions incurred more than 90 days prior to the date the Lender or L/C Issuer, as the case may be, notifies such Borrower of its intention to claim compensation therefor and no Lender shall be entitled to claim any amounts pursuant to this Section 10.3, unless such Lender is then generally claiming or generally will claim such amounts in similar circumstances under comparable credit facilities with similar provisions to this Section 10.3 to which it is a party with borrowers that are similarly situated to and of similar creditworthiness to the relevant Borrower.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a on or after the date hereof, any Change in Law, or compliance by :
(i) shall subject any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) Administrative Agent to any Tax, duty or other charge related with respect to any Loanits Loans, Reimbursement Obligation, its Notes or its obligation to advance or maintain Loans or issue any Letter of Creditmake Loans, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) or the Administrative Agent of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, Loans or its obligation to make Loans, issue Letters Loans (except for changes in the rate of Credit, tax on the overall net income or acquire participations therein (other than, profits of such Bank or its Lending Office or the Administrative Agent imposed by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described which such Bank or its Lending Office or the Administrative Agent is incorporated or in clauses (b) which such Bank’s principal executive office or (c) of Lending Office or the definition of “Excluded Taxes” and (C) Connection Income TaxesAdministrative Agent is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge liquidity or similar requirement (including, without limitation, any compulsory loan requirement, insurance charge or other assessment or any other such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurodollar Loans any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Eurodollar Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance or maintain SOFR make Eurodollar Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or the Administrative Agent of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), Loan or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith the Administrative Agent under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender Bank or Issuing Bank the Administrative Agent to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and or the basis thereofAdministrative Agent, the Company Borrower shall be obligated to pay to such Lender Bank or Issuing Bank the Administrative Agent such additional amount or amounts as will compensate such Lender Bank or Issuing Bank the Administrative Agent for such increased cost or reduction. In the event any law, rule, regulation or interpretation described above is revoked, declared invalid or inapplicable or is otherwise rescinded, and as a result thereof a Bank or the Administrative Agent is determined to be entitled to a refund from the applicable authority for any amount or amounts which were paid or reimbursed by the Borrower to such Bank or the Administrative Agent hereunder, such Bank or the Administrative Agent shall refund such amount or amounts to the Borrower without interest.
(b) If, after the date hereof, any Agent, Bank or the Administrative Agent shall have determined that any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agentregarding capital adequacy or liquidity requirements, Lender or Issuing Bank any change therein (including, without limitation, any revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or [Senior Secured Revolving Credit Agreement] of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding other applicable capital or liquidity requirements rules heretofore adopted and issued by any governmental authority), or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law but, if not having the force of law, compliance with which is customary in the applicable jurisdiction) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital capital, or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies with respect to capital adequacy and the policies of such Lender’s or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty fifteen (3015) days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks Bank that determines to seek compensation under this Section 9.3 shall give written notice to notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, Borrower and the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing the Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, 9.3 and setting forth the additional amount or amounts to be paid to it hereunder submitted to the Borrower and accompanied by a statement prepared the Administrative Agent by such Agent, such Lender or such Issuing Bank, as applicable, describing Bank in reasonable detail the calculations thereof good faith shall be prima facie evidence of the correctness thereofamount of such compensation. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a on or after the date hereof, any Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender)::
(i) subjects shall subject any Lender Bank or Issuing Bank (or its applicable Lending Office) the Administrative Agent to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein Taxes (other than, in each case, than (A) Indemnified Taxes, (B) Taxes described in clauses (b) or through (cd) of the definition of “Excluded Taxes” Taxes and (C) Connection Income Taxes);) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge liquidity or similar requirement (including, without limitation, any compulsory loan requirement, insurance charge or other assessment or any other such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Term SOFR Loans or Daily Term SOFR Loans any such requirement included in an applicable Term SOFR) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition condition, cost or expense affecting its Term SOFR Loans, Letters its Daily Term SOFR Loans, its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereof, or its obligation to advance make Term SOFR Loans or maintain Daily Term SOFR Loans, to issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any a Letter of Credit Credit, or participation to participate therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or the Administrative Agent of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith the Administrative Agent under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender Bank or Issuing Bank the Administrative Agent to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and or the basis thereofAdministrative Agent, the Company Borrower shall be obligated to pay to such Lender Bank or Issuing Bank the Administrative Agent such additional amount or amounts as will compensate such Lender Bank or Issuing Bank the Administrative Agent for such increased cost or reduction. In the event any law, rule, regulation or interpretation described above is revoked, declared invalid or inapplicable or is otherwise rescinded, and as a result thereof a Bank or the Administrative Agent is determined to be entitled to a refund from the applicable authority for any amount or amounts which were paid or reimbursed by the Borrower to such Bank or the Administrative Agent hereunder, such Bank or the Administrative Agent shall refund such amount or amounts to the Borrower without interest.
(b) If, after the date hereof, any Agent, Bank or the Administrative Agent shall have determined that any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agentregarding capital adequacy or liquidity requirements, Lender or Issuing Bank any change therein (including, without limitation, any revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) or [Senior Secured Revolving Credit Agreement] of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding other applicable capital or liquidity requirements rules heretofore adopted and issued by any governmental authority), or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law but, if not having the force of law, compliance with which is customary in the applicable jurisdiction) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital capital, or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies with respect to capital adequacy and the policies of such Lender’s or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty fifteen (3015) days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks Bank that determines to seek compensation under this Section 9.3 shall give written notice to notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, Borrower and the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing the Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, 9.3 and setting forth the additional amount or amounts to be paid to it hereunder submitted to the Borrower and accompanied by a statement prepared the Administrative Agent by such Agent, such Lender or such Issuing Bank, as applicable, describing Bank in reasonable detail the calculations thereof good faith shall be prima facie evidence of the correctness thereofamount of such compensation. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, on or after (x) the date hereof, in the case of Committed Loans or (y) the date of the related Offer, in the case of a Change Bid Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related with respect to any Loanits Fixed Rate Loans, Reimbursement Obligationits Notes, or its obligation to advance or maintain Loans or issue any Letter Letter(s) of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);its
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurocurrency Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Fixed Rate Loans, to issue a Letter of Credit, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided, however, that such Bank shall promptly notify the Borrower of an event which might cause it to seek compensation, and the Borrower shall be obligated to pay only such compensation which is incurred or which arises after the date 60 days prior to the date such notice is given.
(b) If, after the date hereof, any AgentBank or the Agent shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 CXX Xxxx 000, Xxxxxxxx X) xx of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital rules heretofore adopted and issued by any governmental authority), or any Issuing change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank reasonably determines that a Change in Law affecting such Agent, Lender (or Issuing Bank its Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’sBank's capital, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.capital
(c) Each of the Agents, the Lenders and the Issuing Banks Bank that determines to seek compensation under this Section 9.3 shall give written notice to notify the Company and, in Borrower and the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing the Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, 9.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (U S Robotics Corp/De/)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or any Letter of Credit or any obligation to make Committed Loans or to issue or participate in Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Dollar Loan any such requirement with respect to which such Lender is entitled to compensation for the relevant Interest Period under Section 2.17), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, its Notes, its participation in the Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Credit or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, to issue or participate in Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (Fixed Rate Loan or of issuing, maintaining its obligation to participate or participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 30 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Lender will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Each such certificate shall be accompanied by such information as the Borrower may reasonably request as to the computation set forth therein. No payment made to any Lender under this Section shall duplicate any other payments made to such Lender under any other provision of this Agreement.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIn the event that --------------------------------- the adoption of any applicable law, a Change rule or regulation, or any change therein or in Lawthe interpretation or application thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) Participant with any request or directive after the date hereof (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects any Lender does or Issuing Bank (or its applicable Lending Office) shall subject such Participant to any Tax, duty additional tax of any kind whatsoever with respect to the Operative Documents or other charge related to any Loan, Reimbursement Obligationpurchase of a Participation Interest in any Advance, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis or the applicable rate of taxation of payments to any Lender or Issuing Bank (or such Participant of its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Participation Interest or any other amounts due under this Agreement related to its Loansamount payable hereunder (except for the imposition of or change in (x) any tax on or measured by the overall net income of such Participant including, Letters without limitation, any tax that qualifies as an "income tax" within the meaning of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) United States Treasury Regulation Section 1.901-2 and which is not an Imposition or (cy) of the definition of “Excluded Taxes” and (C) Connection Income Taxesany Qualified Withholding Tax);
(ii) imposesdoes or shall impose, modifies modify or deems hold applicable any reserve, special deposit, insurance assessment, compulsory loan, insurance charge loan or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets ofheld by, or deposits with or other liabilities in or for the account of, advances or loans by, or other credit extended by, or participated in any other acquisition of funds by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes office of such Participant which are not otherwise included in determination of the rate of interest on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereofAdvances hereunder; or
(iii) imposes does or shall impose on any Lender or any Issuing Bank or the London interbank market such Participant any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) Participant of making, converting to, continuing purchasing or maintaining its Participation Interest in any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), Advance or to reduce the any amount of receivable hereunder with respect thereto, then in any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereofcase, the Company Lessee shall be obligated promptly pay such Participant, upon its demand, any additional amounts necessary to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank Participant for such increased cost or reductionreduced amount receivable which such Participant deems to be material as determined by such Participant provided, however, that the Lessee shall not be obligated -------- ------- to pay any Participant for any such increased costs or reduced amounts incurred more than sixty (60) days prior to the date of such Participant's demand for payment if such demand was made more than sixty (60) days after the latest of (A) the date such Participant received actual notice of such increased cost or reduced amount, (B) the effective date of such change or (C) the date such change occurred or was enacted.
(b) IfIf any Participant shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any Governmental Authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Participant (or any entity directly or indirectly controlling such Participant) as a consequence of this Agreement, such Participant's obligations under the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, Operative Documents to a level below that which such Lender Participant (or Issuing Bank any entity directly or indirectly controlling such Lender’s or Issuing Bank’s holding company Participant) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank Participant to be material, then, subject to Section 9.3(c), then from time to time, within thirty fifteen (3015) days after its receipt of a certificate from demand by such Lender or Issuing Bank Participant (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Lessee shall pay to such Lender or Issuing Bank Participant such additional amount or amounts as will compensate such Lender Participant (or Issuing Bank its parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each Participant will promptly notify the Lessee and the Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Participant to compensation pursuant to this Section and will, if practicable, with the consent of the AgentsLessee (which consent shall not unreasonably be withheld), the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of designate a Lender different Funding Office or an Issuing Bank take any other than the Administrative Agent, the Administrative Agent of the circumstances that entitle reasonable action if such Agent, such Lender designation or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to action will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithParticipant, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Participant. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Participant claiming compensation under this Section 9.3, and setting forth in reasonable detail its computation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank Participant may use any reasonable averaging and attribution methods. This Section shall survive the termination of this Participation Agreement and payment of the outstanding Advances and Participation Interests.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Euro-Dollar Loan or Letter of Credit or any obligation to make Committed Euro-Dollar Loans or issue or participate in Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, compulsory loan, special deposit, compulsory loan, insurance charge assessment or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board, but excluding with respect to any Euro-Dollar Loan any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.16) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxesTaxes) affecting this Agreement its Fixed Rate Loans or the Letters of Credit, its Note evidencing Fixed Rate Loans made by such Lender or Issuing Bank its obligation to make Fixed Rate Loans or any Letter its obligations hereunder in respect to Letters of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, continuing, converting to, continuing to or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Servicing Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided that the Borrower shall not be required to compensate a Bank pursuant to this Section 8.03(a) for any increased costs or reductions incurred more than 180 days prior to the date that such Bank notifies the Borrower and the Servicing Agent of the event described in this Section 8.03(a) that gives rise to such increased cost or reduction and of such Bank’s intention to claim compensation therefor, and provided further that if the event giving rise to such increased cost or reduction is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy or liquidity requirements, or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 30 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Servicing Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or reduction; provided that the Company may prepay all SOFR Loans of Borrower shall not be required to compensate a Bank pursuant to this Section 8.03(b) for any reductions incurred more than 180 days prior to the date that such Lender or obtain Bank so notifies the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Servicing Agent of the circumstances event described in this Section 8.03(b) that entitle such Agent, such Lender or such Issuing Bank gives rise to such reduction and of such Bank’s intention to claim compensation no later than ninety (90) days after such Agenttherefor, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of and provided further that if the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis increased cost or circumstances in respect of this Section 9.3 giving rise to such compensation reduction is retroactive, then such 90the 180-day period referred to in this sentence above shall be extended to include the period with of retroactive effect thereof. .
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks shall use reasonable efforts Servicing Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and will designate a different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Any Bank’s claim for compensation under this Section 8.03 shall certify that the claim for additional amounts referred to therein is generally consistent with such Bank’s treatment of similarly situated customers of such Bank whose transactions with such Bank are similarly affected by the change in circumstances giving rise to such payment, but such Bank shall not be required to disclose any confidential or proprietary information therein.
(d) For the avoidance of doubt, this Section 8.03 shall apply to all rules, guidelines or directives concerning capital adequacy or liquidity issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, guidelines or directives concerning capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States financial regulatory authorities, in each case pursuant to Basel III, regardless of the date adopted, issued, promulgated or implemented.
Appears in 1 contract
Samples: Credit Agreement (Clorox Co /De/)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Applicable Lending Office) to any Taxtax, duty or other charge related with 60 respect to any Loanits Fixed Rate Loans, Reimbursement Obligation, its Notes or its obligation to advance or maintain Loans or issue any Letter of Creditmake Fixed Rate Loans, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Fixed Rate Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, Fixed Rate Loans or its obligation to make Loans, issue Letters Fixed Rate Loans (except for changes in the rate of Credit, tax on the overall net income of such Bank or acquire participations therein (other than, its Applicable Lending Office imposed by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Bank's principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesApplicable Lending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (A) with respect to any CD Loan, any such requirement included in an applicable Domestic Reserve Percentage and (B) with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage), special deposit, insurance assessment (excluding, with respect to any CD Loan, any such requirement reflected in an applicable Assessment Rate) or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance or maintain SOFR make Fixed Rate Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reductionreduction (including any amount or amounts equal to any taxes on the overall net income of such Bank payable by such Bank with respect to the amount of payments required to be made pursuant to this Section 8.03(a)).
(b) IfIf any Bank determines that the adoption of any applicable law, rule, regulation, guideline or request concerning capital adequacy, or any 61 change therein, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency (including, without limitation, any such adoption or change the effect of which would be, for purposes of capital adequacy requirements, to treat the Commitments hereunder as not constituting commitments with an original maturity of one year or less), occurring after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would will have the effect of reducing increasing the rate amount of return on capital required or expected to be maintained by such Lender’s, Issuing Bank’s capital or Bank based on the capital existence of such Lender’sBank's Commitment hereunder or its obligations hereunder, Issuing Bank’s holding companyit will notify the Borrower. This determination will be made on a Bank by Bank basis. The Borrower will pay to each Bank on demand such additional amounts as are necessary to compensate for the increased cost to such Bank as a result of the event described in the first sentence of this Section 8.03(b). In determining such amount, such Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Bank will pass such costs on to the Borrower only if anysuch costs are passed on in a similar manner by such Bank to similarly situated borrowers (which are parties to credit or loan documentation containing a provision similar to this Section 8.03(b)), as a consequence determined by such Bank in its reasonable discretion. Each Bank's determination of compensation shall be conclusive if made in accordance with this Agreementprovision. Each Bank, upon determining that any increased costs will be payable pursuant to this Section 8.03(b), will give prompt written notice thereof to the Commitments Borrower, which notice shall show the basis for calculation of such Lender increased costs, although the failure to give any such notice shall not release or participations in Letters diminish any of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, Borrower's obligations to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pay increased costs pursuant to this Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit8.03(b).
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and shall furnish a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agenthereunder, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof which shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after such authority, central bank or comparable agency charged with the date hereof (or, if later, after the date such Agent, such Issuing Bankinterpretation or administration thereof, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects compliance by any Lender or Issuing Bank (or its applicable Applicable Lending Office) to with any Tax, duty request or other charge related to any Loan, Reimbursement Obligation, directive (whether or its obligation to advance or maintain Loans or issue any Letter not having the force of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Officelaw) of the principal of any such authority, central bank or interest on its Loanscomparable agency shall impose, Letters of Credit modify or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (i) with respect to any CD Loan any such requirement included in an applicable Domestic Reserve Percentage and (ii) with respect to any Euro-Dollar Loan any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.15), special deposit, insurance assessment (excluding, with respect to any CD Loan, any such requirement reflected in an applicable Assessment Rate) or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or make Fixed Rate Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or reduction; PROVIDED that the Company may prepay all SOFR Loans Borrower shall not be liable for any such amounts attributable to a period more than three months prior to the date of notice by such Lender or obtain Bank to the cancellation Borrower of all such Letters of Creditits intention to seek compensation under this subsection (b).
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3Section, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agentthe basis of calculation thereof, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Western Atlas Inc)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer to any Taxtax, duty or other charge related with respect to its Eurodollar Loans, its Notes, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation, Obligations owed to it or its obligation to advance or maintain Loans or make Eurodollar Loans, issue any a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer of the principal of or interest on its Eurodollar Loans, Letters Letter(s) of Credit Credit, or Reimbursement Obligation or any participations in any thereof, therein or any other amounts due under this Agreement related to or any other Loan Document in respect of its Eurodollar Loans, Letters Letter(s) of Credit, any participation therein, any Reimbursement Obligations or participations thereinowed to it, or its obligation to make Eurodollar Loans, or issue Letters a Letter of Credit, or acquire participations therein (other than, except for changes in each case, the rate or calculation of tax on the overall net income of (Aor franchise taxes imposed in lieu of such income taxes on) Indemnified Taxes, (B) Taxes described such Lender or its Lending Office imposed by the jurisdiction in clauses (b) which such Lender is organized or (c) of maintains its principal executive office or Lending Office or the definition of “Excluded Taxes” and (C) Connection Income TaxesL/C Issuer);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurodollar Loans any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or the L/C Issuer or shall impose on any Lender (or its Lending Office) or the L/C Issuer or on the interbank market any other condition affecting its SOFR Eurodollar Loans, Letters its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Eurodollar Loans, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any a Letter of Credit Credit, or participation to participate therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer of making, converting to, continuing making or maintaining any Eurodollar Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith the L/C Issuer under this Agreement or its Noteunder any other Loan Document with respect thereto, by an amount deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank L/C Issuer such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such increased cost or reduction.
(b) If, after the date hereof, any AgentLender, the L/ C Issuer, or the Administrative Agent shall have determined 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, or compliance by any Lender (or its Lending Office) or the L/C Issuer or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of corporation controlling such Lender or such Lender’s L/C Issuer with any request or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have had the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or L/C Issuer’s or such corporation’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank L/C Issuer or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing BankL/C Issuer’s or such corporation’s policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank L/C Issuer, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each Notwithstanding any provision hereof to the contrary, the Borrower shall not be required to compensate any Lender or the L/C Issuer pursuant to this Section 10.3 for any increased capital costs incurred more than 180 days prior to the date such Lender or L/C Issuer notifies the Borrower of the Agentsevent giving rise to such increased capital cost and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor; provided further, however, that such 180-day limitation shall not apply to any costs that are applicable retroactively so long as the Lenders and applicable Lender or the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to L/C Issuer notifies the Company and, in Borrower of such cost within 180 days of a responsible officer of such Lender or the case L/C Issuer receiving actual knowledge thereof.
(d) A certificate of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, L/C Issuer claiming compensation under this Section 9.3, 10.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereofconclusive if reasonably determined. In determining such amount, such Lender or such Issuing Bank the L/C Issuer may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (CTS Corp)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Euro-Dollar Loan or Letter of Credit or any obligation to make Committed Euro-Dollar Loans or issue or participate in Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, compulsory loan, special deposit, compulsory loan, insurance charge assessment or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board, but excluding with respect to any Euro-Dollar Loan any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.16) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement its Fixed Rate Loans or the Letters of Credit, its Note evidencing Fixed Rate Loans made by such Lender or Issuing Bank its obligation to make Fixed Rate Loans or any Letter its obligations hereunder in respect to Letters of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, continuing, converting to, continuing to or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Servicing Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided that the Borrower shall not be required to compensate a Bank pursuant to this Section 8.03(a) for any increased costs or reductions incurred more than 180 days prior to the date that such Bank notifies the Borrower and the Servicing Agent of the event described in this Section 8.03(a) that gives rise to such increased cost or reduction and of such Bank’s intention to claim compensation therefor, and provided further that if the event giving rise to such increased cost or reduction is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy or liquidity requirements, or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 30 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Servicing Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or reduction; provided that the Company may prepay all SOFR Loans of Borrower shall not be required to compensate a Bank pursuant to this Section 8.03(b) for any reductions incurred more than 180 days prior to the date that such Lender or obtain Bank so notifies the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Servicing Agent of the circumstances event described in this Section 8.03(b) that entitle such Agent, such Lender or such Issuing Bank gives rise to such reduction and of such Bank’s intention to claim compensation no later than ninety (90) days after such Agenttherefor, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of and provided further that if the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis increased cost or circumstances in respect of this Section 9.3 giving rise to such compensation reduction is retroactive, then such 90the 180-day period referred to in this sentence above shall be extended to include the period with of retroactive effect thereof. .
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks shall use reasonable efforts Servicing Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and will designate a different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Any Bank’s claim for compensation under this Section 8.03 shall certify that the claim for additional amounts referred to therein is generally consistent with such Bank’s treatment of similarly situated customers of such Bank whose transactions with such Bank are similarly affected by the change in circumstances giving rise to such payment, but such Bank shall not be required to disclose any confidential or proprietary information therein.
(d) For the avoidance of doubt, this Section 8.03 shall apply to all rules, guidelines or directives concerning capital adequacy or liquidity issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, guidelines or directives concerning capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States financial regulatory authorities, in each case pursuant to Basel III, regardless of the date adopted, issued, promulgated or implemented.
Appears in 1 contract
Samples: Credit Agreement (Clorox Co /De/)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after such authority, central bank or comparable agency charged with the date hereof (or, if later, after the date such Agent, such Issuing Bankinterpretation or administration thereof, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects compliance by any Lender or Issuing Bank (or its applicable Applicable Lending Office) to with any Tax, duty request or other charge related to any Loan, Reimbursement Obligation, directive (whether or its obligation to advance or maintain Loans or issue any Letter not having the force of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Officelaw) of the principal of any such authority, central bank or interest on its Loanscomparable agency shall impose, Letters of Credit modify or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (i) with respect to any CD Loan any such requirement included in an applicable Domestic Reserve Percentage and (ii) with respect to any Euro-Dollar Loan any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.15), special deposit, insurance assessment (excluding, with respect to any CD Loan, any such requirement reflected in an applicable Assessment Rate) or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or make Fixed Rate Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or reduction; PROVIDED that the Company may prepay all SOFR Loans Borrower shall not be liable for any such amounts attributable to a period more than three months prior to the date of notice by such Lender or obtain Bank to the cancellation Borrower of all such Letters of Creditits intention to seek compensation under this subsection (b).
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.this
Appears in 1 contract
Samples: Credit Agreement (Western Atlas Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Euro-Dollar Loan or Letter of Credit or any obligation to make Committed Euro-Dollar Loans or issue or participate in Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, compulsory loan, special deposit, compulsory loan, insurance charge assessment or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board, but excluding with respect to any Euro-Dollar Loan any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.16) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxesTaxes) affecting this Agreement its Fixed Rate Loans or the Letters of Credit, its Note evidencing Fixed Rate Loans made by such Lender or Issuing Bank its obligation to make Fixed Rate Loans or any Letter its obligations hereunder in respect to Letters of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Servicing Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided that the Borrower shall not be required to compensate a Bank pursuant to this Section 8.03(a) for any increased costs or reductions incurred more than 180 days prior to the date that such Bank notifies the Borrower and the Servicing Agent of the event described in this Section 8.03(a) that gives rise to such increased cost or reduction and of such Bank’s intention to claim compensation therefor, and provided further that if the event giving rise to such increased cost or reduction is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy or liquidity requirements, or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 30 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Servicing Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or reduction; provided that the Company may prepay all SOFR Loans of Borrower shall not be required to compensate a Bank pursuant to this Section 8.03(b) for any reductions incurred more than 180 days prior to the date that such Lender or obtain Bank so notifies the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Servicing Agent of the circumstances event described in this Section 8.03(b) that entitle such Agent, such Lender or such Issuing Bank gives rise to such reduction and of such Bank’s intention to claim compensation no later than ninety (90) days after such Agenttherefor, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of and provided further that if the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis increased cost or circumstances in respect of this Section 9.3 giving rise to such compensation reduction is retroactive, then such 90the 180-day period referred to in this sentence above shall be extended to include the period with of retroactive effect thereof. .
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks shall use reasonable efforts Servicing Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and will designate a different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) For the avoidance of doubt, this Section 8.03 shall apply to all rules, guidelines or directives concerning capital adequacy issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States financial regulatory authorities, in each case pursuant to Basel III, regardless of the date adopted, issued, promulgated or implemented.
Appears in 1 contract
Samples: Credit Agreement (Clorox Co /De/)
Increased Cost and Reduced Return. (a) If, a Change after the date hereof, the adoption of any applicable law, rule, or regulation, or any change in Lawany applicable law, rule, or regulation, or any change in the interpretation or administration thereof by any Governmental Authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank of the Banks (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any such Governmental Authority issued after the date hereof (orAuthority, if later, after the date such Agent, such Issuing Bankcentral bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank of the Banks (or its applicable the Applicable Lending Office) to any Taxtax, duty duty, or other charge related with respect to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations thereinNote, or its obligation to make Loans, issue Letters or change the basis of Credit, taxation of any amounts payable to the Banks (or acquire participations therein their Applicable Lending Office) under this Agreement or its Note in respect of any Loans (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) than taxes imposed on the overall net income of the definition of “Excluded Taxes” and (C) Connection Income TaxesBank by the jurisdiction in which the Bank involved has its principal office or such Applicable Lending Office);
(ii) imposesshall impose, modifies modify, or deems deem applicable any reserve, special deposit, assessment, compulsory loan, insurance charge or similar requirement (including, without limitation, other than the Reserve Requirement utilized in the determination of the Adjusted Libor Rate) relating to any such requirement imposed by the Federal Reserve Board) against extensions of credit or other assets of, or any deposits with or for the account other liabilities or commitments of, or credit extended or participated in by, any Lender or Issuing Bank of the Banks (or its applicable their Applicable Lending Office), including the Commitment of the Banks hereunder; or
(iii) or imposes shall impose on any Lender or Issuing Bank of the Banks (or its their Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank its Note or any Letter of Credit such extensions of credit or participation thereinliabilities or commitments; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank any of the Banks (or its applicable their Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Loans or its commitment to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), make Loans or to reduce the amount of any sum received or receivable by such Lender or Issuing the Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or the Note with respect to any Loans or its Notecommitment to make Loans, by an amount deemed by such Lender or Issuing Bank to be materialthen Borrowers shall jointly and severally, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail Banks on demand such determination and the basis thereof, the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank the Banks for such increased cost or reduction. If the Banks request compensation by Borrowers under this SECTION 4.1(a), Borrowers may, by notice to the Banks, suspend the obligation of the Banks to make Loans until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of SECTION 4.4 shall be applicable); provided that such suspension shall not affect the right of the Banks to receive the compensation so requested as to any Loans that remain outstanding as of the date of such request.
(b) If, after the date hereof, any AgentBank shall have determined that the adoption of any applicable law, any Lender rule, or regulation regarding capital adequacy or any Issuing Bank reasonably determines that a Change change therein or in Law affecting such Agentthe interpretation or administration thereof by any Governmental Authority, Lender central bank, or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such Governmental Authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank or any corporation controlling such Bank as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender or Issuing the Bank or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change, request, or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank with respect to be material, then, subject to Section 9.3(ccapital adequacy), then from time to timetime upon demand Borrowers shall jointly and severally, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank Banks such additional amount or amounts as will compensate such Lender or Issuing Bank the Banks for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each The Banks shall promptly notify Borrowers of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event of which they have knowledge, occurring after the Company shall have no any obligation date hereof, which will entitle the Banks to pay any amount with respect compensation pursuant to claims accruing prior to the ninetieth day preceding this section and will designate a different Applicable Lending Office if such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faiththe Banks, be otherwise disadvantageous to it; provided that the foregoing . The Banks shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and furnish to Borrowers a statement setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof which shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may the Banks shall use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Nelnet Inc)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) or the Floating Rate Payor to any Taxtax, duty or other charge related with respect to its Eurodollar Loans or Fixed Rate Loans, its Notes, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation, Obligations owed to it or its obligation to advance or maintain make Eurodollar Loans or Fixed Rate Loans, issue any a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Eurodollar Loans, Letters Fixed Rate Loans, Letter(s) of Credit Credit, or Reimbursement Obligation or any participations in any thereof, therein or any other amounts due under this Agreement related to or any other Loan Document in respect of its Eurodollar Loans, Letters Fixed Rate Loans, Letter(s) of Credit, any participation therein, any Reimbursement Obligations or participations thereinowed to it, or its obligation to make Eurodollar Loans, Fixed Rate Loans, or issue Letters a Letter of Credit, or acquire participations therein (other than, except for changes in each case, (A) Indemnified Taxes, (B) Taxes described the rate of tax on the overall net income of such Lender or its Lending Office imposed by the jurisdiction in clauses (b) which such Lender’s principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesLending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurodollar Loans or Fixed Rate Loans any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or the Floating Rate Payor or shall impose on any Lender (or its Lending Office) or the Floating Rate Payor or on the interbank market any other condition affecting its SOFR Eurodollar Loans or Fixed Rate Loans, Letters its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Eurodollar Loans or Fixed Rate Loans, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any a Letter of Credit Credit, or participation to participate therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or the Floating Rate Payor, as the case may be, of making, converting to, continuing making or maintaining any Eurodollar Loan or Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith the Floating Rate Payor under this Agreement or its Noteunder any other Loan Document with respect thereto, by an amount deemed by such Lender or Issuing Bank the Floating Rate Payor to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank the Floating Rate Payor, as the case may be (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrowers shall be obligated to pay to such Lender or Issuing Bank the Floating Rate Payor, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank the Floating Rate Payor for such increased cost or reduction. Any demand on the Borrowers by a Lender or the Floating Rate Payor under this Section shall be accompanied by a certificate setting forth the amount of such increased cost or reduced sum in reasonable detail (including an explanation of the basis for and the computation of such increased cost or reduced sum).
(b) If, after the date hereof, any AgentLender or the Floating Rate Payor or the Administrative Agent shall have determined 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, or compliance by any Lender (or its Lending Office) or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of corporation controlling such Lender with any request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) or the Floating Rate Payor of any such authority, central bank or comparable agency, has or would have had the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or such corporation’s or the Floating Rate Payor’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank such corporation or such Lender’s or Issuing Bank’s holding company the Floating Rate Payor could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Banksuch corporation’s or the Floating Rate Payor’s policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank the Floating Rate Payor to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank the Floating Rate Payor (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrowers shall pay to such Lender or Issuing Bank the Floating Rate Payor, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank the Floating Rate Payor for such reduction suffered reduction. Any demand on the Borrowers by a Lender or the Company may prepay all SOFR Loans Floating Rate Payor under this Section shall be accompanied by a certificate setting forth the amount of such Lender or obtain reduced return in reasonable detail (including an explanation of the cancellation basis for and the computation of all such Letters of Creditreduced return).
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case A certificate of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Floating Rate Payor claiming compensation under this Section 9.3, 10.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereofconclusive, absent manifest error, if reasonably determined. In determining such amount, such Lender or such Issuing Bank the Floating Rate Payor may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Rc2 Corp)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date of this Agreement, a Change in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, any Bank has determined in its reasonable judgment that the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency, after the date such Agentshall impose, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (i) with respect to any CD Loan any such requirement included in an applicable Domestic Reserve Percentage and (ii) with respect to any Euro-Dollar Loan any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.15), special deposit, insurance assessment (excluding, with respect to any CD Loan, any such requirement reflected in an applicable Assessment Rate) or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing such Bank (or its applicable Applicable Lending Office) or imposes shall impose 51 56 on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Promissory Note or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or make Fixed Rate Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NotePromissory Note with respect thereto, by an amount deemed by such Lender or Issuing Bank to be materialmaterial to such Bank, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from written demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereofof this Agreement, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from written demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date of this Agreement, which will entitle such Agent, such Lender or such Issuing Bank to compensation pursuant to this Section; provided that (i) if any Bank fails to give such compensation no later than ninety (90) notice within 90 days after such Agent, such Lender or such Issuing Bank receives actual notice or it obtains actual knowledge of such an event, such Bank shall only be entitled to payment under this Section 8.03 for costs incurred from and after the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing date 90 days prior to the ninetieth day preceding date that such written demand; provided that, Bank does give such notice and (ii) each such Bank will designate a different Applicable Lending Office if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in the good faithfaith exercise of its discretion, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by the basis used to determine such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof amounts shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may will use any reasonable averaging and attribution methodsmethods and will have a reasonable basis for any assumptions it makes in connection therewith.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office), including (if applicable) in its capacity as an Issuing Agent or Swing Line Bank hereunder, with any request or directive (whether or not having the force of law but, if not having the force of law, compliance with which is customary in the relevant jurisdiction) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related with respect to its Fixed Rate Loans, its Notes, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation, Obligations owed to it or its obligation to advance or maintain Loans or make Fixed Rate Loans, issue any a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Fixed Rate Loans, Letters Letter(s) of Credit Credit, or Reimbursement Obligation or any participations in any thereof, therein or any other amounts due under this Agreement related to in respect of its Fixed Rate Loans, Letters Letter(s) of Credit, Reimbursement Obligations or participations therein, any Reimbursement Obligations owed to it, or its obligation to make Fixed Rate Loans, issue Letters a Letter of Credit, or acquire participations therein (other than, except for changes in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);tax on the overall net
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem or with respect to Obligations denominated in Pound Sterling, the Bank of England, but excluding with respect to any Eurocurrency Loans any such requirement to the extent such Bank has already been compensated pursuant to the second paragraph of Section 1.3(b) hereof) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Fixed Rate Loans, to issue a Letter of Credit, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company and (subject to Section 17.19 hereof) the other Borrowers shall be jointly and severally obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided, however, that (a) such Bank shall promptly notify the Company of an event which might cause it to seek compensation, and the Company shall be obligated to pay only such compensation which is incurred or which arises after the date ninety (90) days prior to the date such notice is given and (b) such Bank shall not be entitled to make such a claim for compensation if the Bank has not generally been making claims for compensation under similar circumstances from other borrowers similarly situated under loan agreements with provisions comparable to this Section entitling the Bank to make such a claim. In the event any law, rule, regulation or interpretation described above is revoked, declared invalid or inapplicable or is otherwise rescinded, and as a result thereof a Bank is determined to be entitled to a refund from the applicable authority for any amount or amounts which were paid or reimbursed by the Company to such Bank hereunder, such Bank shall refund such amount or amounts to the Company without interest.
(b) If, after the date hereof, any AgentBank (including in its capacity as an Issuing Agent or Swing Line Bank hereunder) or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender or any Issuing Bank reasonably determines that a Change revision in Law affecting such Agentthe Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office Appendix A; 12 CXX Xxxx 000, Xxxxxxxx X) xx of such Lender or such Lender’s or Issuing Bank’s holding companythe Office of the Comptroller of the Currency (12 CFR Part 3, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such LenderAppendix A), or the Letters of Credit in any other applicable capital rules heretofore adopted and issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(cgovernmental authority), from time to timeor any change in the interpretation or administration thereof by any governmental authority, within thirty (30) days after its receipt of a certificate from such Lender central bank or Issuing comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with a copy to any request or directive regarding capital adequacy (whether or not having the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and force of law but, if not having the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans force of such Lender or obtain the cancellation of all such Letters of Credit.law,
(c) Each of the Agents, the Lenders and the Issuing Banks Bank that determines to seek compensation under this Section 9.3 14.3 shall give written notice to notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing the Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to 14.3 and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise impractical or disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3material respect to such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, 14.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofdemonstrable error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. The protection of this Section 14.3 shall be available to each Bank regardless of any possible contention of the invalidity or inapplicability of any law, regulation or other condition which shall give rise to any demand by such Bank for compensation.
Appears in 1 contract
Samples: Credit Agreement (Sickinger Co)
Increased Cost and Reduced Return. (a) IfIf on or after the date hereof, a Change the adoption of any applicable law, rule or regulation, or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central 50 56 bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Applicable Lending Office) to any Taxtax, duty or other charge related with respect to any Loanits Fixed Rate Loans, Reimbursement Obligation, its Note or its obligation to advance or maintain Loans or issue any Letter of Creditmake Fixed Rate Loans, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Fixed Rate Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, Fixed Rate Loans or its obligation to make Loans, issue Letters Fixed Rate Loans (except for any increase in franchise taxes imposed or changes in the rate of Credit, tax on the overall net income of such Bank or acquire participations therein (other than, its Applicable Lending Office imposed by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Bank's principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesApplicable Lending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (A) with respect to any CD Loan any such requirement included in an applicable Domestic Reserve Percentage and (B) with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance or maintain SOFR make Fixed Rate Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central 51 57 bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law law, rule, regulation, change or compliance (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing its Parent) for such reduction; provided that the Borrower will not be obligated to compensate any Bank for any such reduction suffered or attributable to a period commencing more than 120 days prior to the Company may prepay all SOFR Loans giving of notice by such Bank to the Borrower of its intention to seek compensation under this paragraph (b) and the making of demand by such Bank for payment thereof in accordance herewith (except for any period during which, because of the retroactive application of such Lender statute, regulation or obtain other basis upon which the cancellation claimed compensation is based, such Bank did not know that the amount of all such Letters of Creditreduction would arise or accrue).
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law but, if not having the force of law, compliance with which is customary in the relevant jurisdiction) of any Governmental Authority such authority, central bank or comparable agency issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):hereof:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related with respect to its Eurocurrency Loans, its Notes, its Letters of Credit, or its participation in any Loanthereof, any Reimbursement Obligation, Obligations owed to it or its obligation to advance or maintain Loans or make Eurocurrency Loans, issue any Letter Letters of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Eurocurrency Loans, Letters of Credit Credit, or Reimbursement Obligation or any participations in any thereof, therein or any other amounts due under this Agreement related to in respect of its Eurocurrency Loans, Letters of Credit, Reimbursement Obligations or participations therein, any Reimbursement Obligations owed to it, or its obligation to make Eurocurrency Loans, issue Letters a Letter of Credit, or acquire participations therein (other thanexcept for changes in the rate of tax on the overall net income or profits of such Lender or its Lending Office imposed by the jurisdiction in which such Lender or its lending office is incorporated, or in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Lender’s principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesLending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurocurrency Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Eurocurrency Loans, its Notes, its Letters of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Eurocurrency Loans, to issue a Letter of Credit, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any Eurocurrency Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrowers shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction. In the event any law, rule, regulation or interpretation described above is revoked, declared invalid or inapplicable or is otherwise rescinded, and as a result thereof a Lender is determined to be entitled to a refund from the applicable authority for any amount or amounts which were paid or reimbursed by the Borrowers to such Lender hereunder, such Lender shall refund such amount or amounts to the Company on behalf of the Borrowers without interest.
(b) IfIf any Lender or the Administrative Agent shall have determined that the adoption, after the date hereof, of any Agentapplicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital rules heretofore adopted and issued by any governmental authority), or any Issuing Bank reasonably determines that a Change change in Law affecting such Agentthe interpretation or administration thereof after the date hereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or Issuing Bank its Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office directive issued after the date hereof regarding capital adequacy (whether or not having the force of such Lender or such Lender’s or Issuing Bank’s holding companylaw but, if anynot having the force of law, regarding capital compliance with which is customary in the applicable jurisdiction) of any such authority, central bank or liquidity requirements comparable agency, has or would have the effect of reducing the rate of return on such Lender’s’s capital, Issuing Bank’s capital or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrowers shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks Lender that determines to seek compensation under this Section 9.3 11.3 shall give written notice to notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of the circumstances that entitle such Agent, such the Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to 11.3 and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, 11.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive if reasonably determined. The Borrowers shall not be obligated to reimburse, compensate or indemnify any Lender with respect to a claim or any portion thereof to the extent such claim or portion thereof arose more than 120 days prior to the notice of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsclaim delivered pursuant to this Section 11.3(c).
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Gallagher Arthur J & Co)
Increased Cost and Reduced Return. (a) IfIf the adoption after the date hereof of any applicable law, a Change rule or regulation, or any change therein after the date hereof, or any change after the date hereof in Lawthe interpretation or administration thereof by any Governmental Authority or Accounting Authority charged with the interpretation or administration thereof, or compliance by any AgentWindmill Funding Source, the Agent or any Lender or Issuing Bank Purchaser (or its applicable Lending Officecollectively, the “Funding Parties”) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof of any such Governmental Authority (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
“Regulatory Change”) (ia) subjects any Lender or Issuing Bank (or its applicable Lending Office) Funding Party to any Taxadditional charge or withholding on or in connection with a Funding Agreement or this Agreement (collectively, duty the “Funding Documents”) or other charge related to any LoanReceivable, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change (b) changes the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal Funding Parties of any amounts payable under any of the Funding Documents, other than any Taxes imposed on or interest on its Loans, Letters measured by the net income of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casethe Funding Party, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties, (d) has the effect of reducing the rate of return on such Funding Party’s capital to a level below that which such Funding Party could have achieved but for such adoption, change or Issuing Bank compliance (or its applicable Lending Officetaking into consideration such Funding Party’s policies concerning capital adequacy) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iiie) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is (x) to impose a cost on, or increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Funding Party of participating in, issuing or maintaining its commitment under any Letter of Credit (Funding Document or of purchasing, maintaining its obligation to participate in or to issue funding any Letter of Credit)interest acquired under any Funding Document, or (y) to reduce the amount of any sum received or receivable by, or to reduce the rate of return of, any Funding Party under any Funding Document or (z) to require any payment calculated by such Lender reference to the amount of interests held or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit hereunder, then, subject to Section 9.3(c)upon demand by the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy the Seller shall pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and Agent for the basis thereof, account of the Company shall be obligated to pay to such Lender or Issuing Bank Person such additional amount or amounts as will compensate the Agent or such Lender or Issuing Bank Purchaser (or, in the case of Windmill, will enable Windmill to compensate any Windmill Funding Source) for such increased cost or reduction.
. Notwithstanding the foregoing, the Seller shall only be obligated to a Windmill Funding Source under this Section to the extent Windmill is obligated to reimburse the Windmill Funding Source for the applicable amount (b) If, after the date hereof, it being understood that any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting limitations on recourse to Windmill for such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lenderamounts do not limit Windmill’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence obligations for purposes of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative AgentSection) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case terms of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsFunding Agreement.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIn the event that the adoption of any applicable law, a Change rule or regulation, or any change therein or in Lawthe interpretation or application thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by the Lessor or any Agent, any Lender or Issuing Bank (or its applicable Lending Office) Liquidity Provider with any request or directive after the date hereof (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects does or shall subject the Lessor or any Lender or Issuing Bank (or its applicable Lending Office) Liquidity Provider to any Taxadditional tax of any kind whatsoever with respect to the Operative Documents or any Advance, duty Loan or other charge related to any LoanLiquidity Purchase, Reimbursement Obligationas the case may be, made by it, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis or the applicable rate of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation Lessor or any participations in any thereofLiquidity Provider of principal, interest or any other amounts due amount payable hereunder or under this Agreement related to its Loans, Letters any other Operative Document (except for the imposition of Credit, Reimbursement Obligations or participations therein, change in any tax on or its obligation to make Loans, issue Letters measured by the overall net income of Credit, the Lessor or acquire participations therein any Liquidity Provider (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) than any such tax imposed by means of the definition of “Excluded Taxes” and (C) Connection Income Taxeswithholding));
(ii) imposesdoes or shall impose, modifies modify or deems hold applicable any reserve, special deposit, insurance assessment, compulsory loan, insurance charge loan or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets ofheld by, or deposits with or other liabilities in or for the account of, advances or loans by, or other credit extended by, or participated in any other acquisition of funds by, any Lender office of the Lessor or Issuing Bank (or its applicable Lending Office) or imposes any Liquidity Provider which are not otherwise included in determination of the rate of interest on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereofAdvances hereunder; or
(iii) imposes does or shall impose on any Lender the Lessor or any Issuing Bank or the London interbank market Liquidity Provider any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender the Lessor or Issuing Bank (or its applicable Lending Office) any Liquidity Provider of making, converting to, continuing making or maintaining any LoanAdvances, Loans or to increase Liquidity Purchases, as the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit)case may be, or to reduce any amount receivable hereunder, then in any such case, the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest Lessee shall promptly pay to the Lessor or any other amount) in connection therewith under this Agreement or its NoteLiquidity Provider, by an amount deemed by such Lender or Issuing Bank upon demand, any additional amounts necessary to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to compensate the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination Lessor and the basis thereof, the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank each Liquidity Provider for such increased cost or reductionreduced amount receivable.
(b) IfIf the Lessor or any Liquidity Provider shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, or if any Liquidity Provider shall have determined that a Change change in Law affecting such Agentthe risk weighting of its Commitment is necessary, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] and any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements the foregoing has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, the Lessor or any Liquidity Provider (or any entity directly or indirectly controlling the Lessor or any Liquidity Provider) as a consequence of this Agreement, the Commitments of such Lender Lessor's or participations in Letters of Credit held by, such Lender, or any Liquidity Provider's obligations under the Letters of Credit issued by any Issuing Bank, Operative Documents to a level below that which such Lender the Lessor or Issuing Bank any Liquidity Provider (or such Lender’s any entity directly or Issuing Bank’s holding company indirectly controlling the Lessor or any Liquidity Provider) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank with respect to be material, then, subject to Section 9.3(ccapital adequacy), then from time to time, within thirty fifteen (3015) days after its receipt of a certificate from such Lender demand by the Lessor or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereofany Liquidity Provider, the Company Lessee shall pay to such Lender or Issuing Bank the Lessor such additional amount or amounts as will compensate such Lender the Lessor and the Liquidity Providers (or Issuing Bank their respective controlling entities) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each The Lessor will promptly notify the Lessee of any event of which it has knowledge, occurring after the date hereof, which will entitle the Lessor to compensation pursuant to this Section and will, if practicable, with the consent of the AgentsLessee (which consent shall not unreasonably be withheld), the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of designate a Lender different Funding Office or an Issuing Bank take any other than the Administrative Agent, the Administrative Agent of the circumstances that entitle reasonable action if such Agent, such Lender designation or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to action will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faiththe Lessor, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3Lessor. A certificate of any Agent, any Lender the Lessor or any Issuing Bank, as applicable, Liquidity Provider claiming compensation under this Section 9.3, and setting forth in reasonable detail its computation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank the Lessor and each Liquidity Provider may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Master Lease and Security Agreement (Rite Aid Corp)
Increased Cost and Reduced Return. (a) If, a Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) Subject to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending OfficeSection 8.7(g) of the principal of or interest on its LoansLoan Agreement, Letters of Credit or Reimbursement Obligation or if at any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, any AgentLender (which shall include, for purposes of this Section 4(d), any Lender or corporation controlling any Issuing Bank reasonably Lender) determines that a any Change in Law affecting such Agent(as defined in the Loan Agreement) or other adoption or modification of any applicable Law or the enforcement or interpretation thereof regarding taxation, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s required levels of reserves, deposits, insurance or Issuing Bank’s holding companycapital (including any allocation of capital requirements or conditions), if anyor similar requirements, regarding capital or liquidity requirements any interpretation or administration thereof by any Tribunal or compliance by such Lender with any of such requirements, has or would have the effect of (a) increasing such Lender’s costs related to its Pro Rata Share of the Indebtedness (as hereinafter defined), or (b) reducing the yield or rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters on its Pro Rata Share of Credit held by, such Lender, or the Letters of Credit issued by any Issuing BankIndebtedness, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for the adoption or modification of any such Change in Law requirements (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be materialcollectively, then, subject to Section 9.3(c“Compliance Costs”), from time to timeBorrower shall, within thirty fifteen (3015) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the any request by Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as (in such Lender’s sole judgment, after good faith and reasonable computation) will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans Compliance Costs of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to itLender; provided that the foregoing shall not in any way affect the rights imposition of such Compliance Costs is generally consistent with such Lender’s treatment of similar financings. No failure by Administrative Agent to immediately demand payment of any Lender additional Compliance Costs payable hereunder shall constitute a waiver of Administrative Agent’s or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate Xxxxxx’s right to demand payment of any Agent, such amounts at any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof subsequent time. Nothing herein contained shall be prima facie evidence of the correctness thereof. In determining such amountconstrued or shall so operate as to require Borrower to pay any interest, such Lender fees, costs or such Issuing Bank may use any reasonable averaging and attribution methodscharges greater than is permitted by applicable Law.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) ), with any request or directive (whether or not having the force of law) of any Governmental Authority such authority, central bank or comparable agency exercising control over banks or financial institutions generally issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, the Administrative Agent or such Lender becomes an Agent, an Issuing Bank the Administrative Agent or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related to any Loan, Reimbursement Obligation, Eurodollar Loan or its obligation to advance or maintain Loans or issue any Letter of CreditEurodollar Loans, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation Eurodollar Loans or any participations in any thereof, or any other amounts due under this Agreement or any other Credit Documents related to its Loans, Letters of Credit, Reimbursement Obligations Eurodollar Loans or participations therein, or its obligation to make Loans, issue Letters of Credit, Eurodollar Loans or acquire participations therein (other than, in each case, (A) except for changes with respect to taxes that are not Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxespursuant to Section 3.3);; or
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding for any Eurodollar Loan any such requirement included in an applicable Statutory Reserve Rate) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, Eurodollar Loans or its participations participation in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit Eurodollar Loans or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing advancing or maintaining any Eurodollar Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Noteany other Credit Document, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c8.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, the Administrative Agent or any AgentLender shall have reasonably determined that the adoption after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital adequacy rules heretofore adopted and issued by any governmental authority), or any Issuing Bank reasonably determines that a Change change after the date hereof in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Administrative Agent or any Lender (or Issuing Bank its applicable Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s’s capital, Issuing Bank’s capital or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Bankits controlling corporation’s policies and the policies of with respect to capital adequacy in effect immediately before such Lender’s adoption, change or Issuing Bank’s holding companycompliance) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c8.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company Borrower may prepay all SOFR Eurodollar Loans of such Lender or obtain the cancellation of all such Letters of CreditLender.
(c) Each of the Agents, the Lenders The Administrative Agent and the Issuing Banks each Lender that determines to seek compensation or additional interest under this Section 9.3 8.3 shall give written notice to the Company Borrower and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, the Administrative Agent or such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, the Administrative Agent or such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company Borrower shall not have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, except if the basis law, rule, order or circumstances in respect of this Section 9.3 interpretation giving rise to such request for compensation is retroactivehas retroactive effect, then such ninety (90-) day period referred to in this sentence shall be extended to include the period with such retroactive effect thereofperiod. Each of the Agents, the Lenders The Administrative Agent and the Issuing Banks each Lender shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, additional interest, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, the Administrative Agent or such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company Borrower under this Section 9.38.3, and provided further that no Lender shall be obligated to make its Eurodollar Loans hereunder at any office located in the United States of America. A certificate of any Agent, any Lender the Administrative Agent or any Issuing BankLender, as applicable, claiming compensation or additional interest under this Section 9.38.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, the Administrative Agent or such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change after the date hereof, the adoption of any applicable Law, rule, or regulation, or any change in any applicable Law, rule, or regulation, or any change in the interpretation or administration thereof by any Governmental Authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any such Governmental Authority issued after the date hereof (orAuthority, if later, after the date such Agent, such Issuing Bankcentral bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects any Lender or Issuing shall subject such Bank (or its applicable Applicable Lending Office) to any Tax, duty duty, or other charge related with respect to any LoanEurodollar Loans, Reimbursement Obligationits Note, or its obligation to advance or maintain Loans or issue any Letter of Creditmake Eurodollar Loans, or shall change the basis of taxation of payments any amounts payable to any Lender or Issuing such Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters Note in respect of Credit, or acquire participations therein any Eurodollar Loans (other than, than Taxes imposed on the overall net income of such Bank by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Bank has its principal office or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxessuch Applicable Lending Office);
(ii) imposesshall impose, modifies modify, or deems deem applicable any reserve, special deposit, assessment, compulsory loan, insurance charge or similar requirement (including, without limitation, other than the Reserve Requirement utilized in the determination of the Adjusted Eurodollar Rate) relating to any such requirement imposed by the Federal Reserve Board) against extensions of credit or other assets of, or any deposits with or for the account other liabilities or commitments of, or credit extended or participated in by, any Lender or Issuing such Bank (or its applicable Applicable Lending Office), including the Commitment of such Bank hereunder; or
(iii) or imposes shall impose on any Lender or Issuing such Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank its Note or any Letter of Credit such extensions of credit or participation thereinliabilities or commitments; and and
(iv) the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting toConverting into, continuing Continuing, or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), Eurodollar Loans or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its NoteNote with respect to any Eurodollar Loans, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company then Borrower shall be obligated to pay to such Lender or Issuing Bank on demand such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction. If any Bank requests compensation by Borrower under this Section 4.1(a), Borrower may, by notice to such Bank (with a copy to Administrative Agent), suspend the obligation of such Bank to make or Continue Eurodollar Loans or to Convert all or part of the Base Rate Loan owing to such Bank into Eurodollar Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 4.4 shall be applicable); provided that such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) If, after the date hereof, any AgentBank shall have determined that the adoption of any applicable Law, any Lender rule, or regulation regarding capital adequacy or any Issuing Bank reasonably determines that a Change change therein or in Law affecting such Agentthe interpretation or administration thereof by any Governmental Authority, Lender central bank, or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such Governmental Authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank or any corporation controlling such Bank as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change, request, or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank with respect to be material, then, subject to Section 9.3(ccapital adequacy), then from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company time upon demand Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders Bank shall promptly notify Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to 4.1 and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing . Any Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, 4.1 shall furnish to Borrower and Administrative Agent a statement setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof which shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) made after the Closing Date of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects shall subject any Lender or Issuing Bank to any tax on its capital reserves (or its applicable Lending Officeany similar tax) with respect to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation this Agreement or any participations Eurodollar Loan made by it (except for Non-Excluded Taxes and Other Taxes covered by Section 8.4 and changes in any thereof, the rate of tax on the overall net income or any other amounts due under this Agreement related to its Loans, Letters profits of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxessuch Bank);
; (ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System (but excluding with respect to any Eurodollar Loan any such requirement reflected in an applicable Eurodollar Reserve Percentage)), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes (iii) shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the interbank market any other condition materially more burdensome in nature, extent or consequence than those in existence as of the date hereof affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, such Bank’s Eurodollar Loans or its obligation to advance or maintain SOFR make Eurodollar Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Eurodollar Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect to such Eurodollar Loans, by an amount deemed reasonable determined by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts (based upon a reasonable allocation thereof by such Bank to the Eurodollar Loans made by such Bank hereunder) as will compensate such Lender or Issuing Bank for such increased cost or reductionreduction to the extent such Bank generally imposes such additional amounts on other borrowers of such Bank in similar circumstances; provided however, that notwithstanding anything herein to the contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and Basel III all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a change in law, regardless of the date enacted, adopted or issued.
(b) IfIf any Bank shall have reasonably determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) made after the Closing Date of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or to the Company may prepay all SOFR Loans extent such Bank generally imposes such additional amounts on other borrowers of such Lender or obtain the cancellation of all such Letters of CreditBank in similar circumstances.
(c) Each Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the Agentsdate enacted, adopted, issued or implemented.
(d) Each Bank will promptly notify the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole reasonable judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that such Bank. Notwithstanding the foregoing foregoing, if such Bank shall not in any way affect fail to notify the rights Borrower of any Lender or any Issuing Bank or such event within ninety (90) days following the obligations end of the Company under month during which such event occurred, then the Borrower’s liability for any amounts described in this Section 9.3incurred by such Bank as a result of such event shall be limited to those attributable to the period occurring subsequent to the ninetieth (90th) day prior to, but excluding, the date upon which such Bank actually notified the Borrower of the occurrence of such event. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth a reasonably detailed calculation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofdemonstrable error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(e) If at any time, any Bank has demanded compensation pursuant to this Section 8.3, the Borrower shall have the right, upon five (5) Business Day’s notice to the Administrative Agent to either (x) in accordance with Section 9.6(c), cause an Assignee to offer to purchase the Loans of such Bank for an amount equal to such Bank’s outstanding Loans plus accrued interest, fees and other amounts due to such Bank, and to become a Bank hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the Loans of such Bank for such amount, which offer such Bank is hereby required to accept, or (y) to repay in full all Loans then outstanding of such Bank, together with interest and all other amounts due thereon.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change in Law, If on or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orhereof, if later, after in the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects case of any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation Loan or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, any Change in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);Law
(iii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit (including letters of credit and participations therein) extended or participated in by, any Lender (or Issuing Bank its applicable Lending Office);
(ii) shall impose on any Lender (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement its Term SOFR Loans, its Notes or Loans made by such its obligation to make Term SOFR Loans; or
(iii) shall subject any Lender or Issuing Bank Agent to any taxes (other than (A) Taxes, (B) taxes described in (i), (ii), (iii) or any Letter (iv) of Credit the exclusions described in the definition of “Taxes” and (C) Other Taxes) on its loans, loan principal, letters of credit, commitments, or participation thereinother obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any Term SOFR Loan (or, in the case of a Change in Law with respect to taxes, any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), ) or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital liquidity of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s its policies with respect to capital adequacy or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Lender will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts necessary to compensate such Lender, as the case may be, shall be paid conclusive in the absence of manifest error.
(d) Failure or delay on the part of any Lender to it hereunder and accompanied by demand compensation pursuant to this Section shall not constitute a statement prepared by waiver of such Agent, Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Issuing BankLender’s intention to claim compensation therefor; provided further that, as applicableif the Change in Law giving rise to such increased costs or reductions is retroactive, describing in reasonable detail then the calculations thereof 180-day period referred to above shall be prima facie evidence extended to include the period of the correctness retroactive effect thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after (x) Effective Date, a in the case of any Committed Loan or Letter of Credit or any obligation to make Committed Loans or issue or participate in any Letter of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, any Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
Law (i) subjects any Lender shall impose, modify or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Currency Loan any such requirement included in an applicable Euro-Currency Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office); (ii) shall subject any Lender or imposes Agent to any Taxes (other than (A) Indemnified Taxes or (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the interbank United States market any other condition affecting its SOFR Loans, Letters for certificates of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank deposit or the London interbank market any other condition, cost or expense (other than taxesTaxes) affecting this Agreement its Fixed Rate Loans or Loans made by such Lender or Issuing Bank or any Letter Letters of Credit Liabilities, any of its Notes or participation therein; its obligation to make Fixed Rate Loans or its obligations hereunder in respect of Letters of Credit, and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan (or, in the case of an adoption or change with respect to Taxes, any Loan, ) or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under any of its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated pay, or cause the relevant Borrower to pay pay, to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that any Change in Law, on or after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements Effective Date has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or reduction, provided that no such demand by any Lender shall include any period commencing earlier than 90 days prior to the Company may prepay all SOFR Loans date of such Lender or obtain the cancellation of all such Letters of Creditdemand.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to Lender will promptly notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of the circumstances that any event of which it has knowledge, occurring after Effective Date, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. No delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 8.03 shall constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrowers shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section 8.03 for any increased costs incurred or reductions suffered more than 90 days prior to the date that such Lender notifies the Company of the event or circumstance giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the event or circumstance giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof).
(d) If at any time any Subsidiary that is organized in, or conducts business in, a jurisdiction outside the United States becomes an Eligible Subsidiary, all applicable laws, rules and regulations then in effect in such jurisdiction shall be deemed for purposes of Section 8.03(a) to have been adopted at such time and all applicable requests and directives theretofore made by any governmental authority, central bank or comparable agency in such jurisdiction shall be deemed for purposes of Section 8.03(a) to have been made at such time; provided that no Lender shall be obligated under Section 8.03(c) to give notice of any such law, rule, regulation, request or directive, or to designate a different Applicable Lending Office by reason thereof, until an officer of such Lender responsible for administering this Agreement shall have become aware of such law, rule, regulation, request or directive and the relevant consequences thereof.
Appears in 1 contract
Samples: Credit Agreement (Allergan Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or Letters of Credit or any obligation to make Committed Loans or issue or participate in any Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or any Issuing Bank with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro–Dollar Loan any such requirement included in an applicable Euro–Dollar Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit (including letters of credit and participations therein) extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes any Issuing Bank or shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or any Issuing Bank or on the London interbank market any other condition affecting its SOFR Loans, Fixed Rate Loans or the Letters of Credit, any Reimbursement Obligations owed to itits Note, or its participations in any thereof, or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing making or maintaining any Letter of Credit (Fixed Rate Loan or of maintaining its obligation to participate issuing or participating in or to issue any Letter Letters of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith such Issuing Bank under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender Bank or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender Bank or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated to pay to such Lender Bank or Issuing Bank such additional amount or amounts as will compensate such Lender Bank or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that change in any such law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency (including any determination by any such authority, central bank or comparable agency that, for purposes of capital adequacy requirements, the Commitments hereunder do not constitute commitments with an original maturity of one year or less, which shall be deemed a Change change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office the interpretation and administration of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements requirements) has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Bank will promptly notify the Agents, the Lenders Company and the Issuing Banks that determines Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Notwithstanding the foregoing subsections (a) and (b) of this Section 8.03, the Company shall only be obligated to compensate any Bank for any amount arising or accruing during (i) any time or period commencing not more than 90 days prior to the date on which such Bank notifies the Agent and the Company that it proposes to demand such compensation and identifies to the Agent and the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (ii) any time or period during which, because of the retroactive application of such statute, regulation or other such basis, such Bank did not know that such amount would arise or accrue.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) case of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, Committed Loan or such Lender becomes an Agent, an Issuing Bank Letter of Credit or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain make Syndicated Loans or issue or participate in any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation Swingline Loan or (y) the date of any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other thanCompetitive Bid Quote, in the case of any Competitive Bid Loan (in each case, (A) Indemnified Taxes, (B) Taxes case described in clauses (bx) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxesy);
(ii) imposes, modifies the “Applicable Date”), any Change in Law shall impose, modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (i) with respect to any CD Loan any such requirement included in an applicable Domestic Reserve Percentage and (ii) with respect to any Euro-Currency Loan any such requirement included in an applicable Euro-Currency Reserve Percentage), special deposit, insurance assessment (excluding, with respect to any CD Loan, any such requirement reflected in an applicable Assessment Rate) or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated pay, or shall cause another Borrower to pay to pay, such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that, after the date hereofApplicable Date, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to Lender will promptly notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that Applicable Date, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole reasonable judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, shall be delivered to the Company and the Administrative Agent setting forth the additional amount or amounts to be paid to it hereunder and which certificate, accompanied by a statement prepared by computation thereof in reasonable detail, shall be conclusive in the absence of manifest error. Notwithstanding subsection (a) of this Section, the Company shall only be obligated to compensate any Lender for any amount arising or accruing during (i) any time or period commencing not more than 90 days prior to the date on which such AgentLender notifies the Administrative Agent and the Company that it proposes to demand such compensation and identifies to the Administrative Agent and the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (ii) any time or period during which, because of the retroactive application of such statute, regulation or other such basis, such Lender did not know that such amount would arise or accrue.
(d) Section 8.03 does not apply to the extent any increased cost is:
(i) attributable to any taxes, whether or not such Issuing Banktaxes are excluded from the definition of “Taxes” for the purpose of Section 8.04;
(ii) compensated for by the payment of the Mandatory Cost; or
(iii) attributable to the willful breach by the relevant Lender or its Affiliates of any law or regulation.
(e) If the cost to any Lender of making or maintaining any Loan to or of issuing or maintaining any Letter of Credit for the account of an Eligible Subsidiary (other than Praxair Canada Inc. and XXXX) is increased, as applicableor the amount of any sum received or receivable by any Lender (or its Applicable Lending Office) is reduced by an amount deemed by such Lender to be material, describing in reasonable detail by reason of the calculations thereof fact that an Eligible Subsidiary (other than Praxair Canada Inc. and XXXX) is incorporated in, or conducts business in, a jurisdiction outside the United States, the legal basis therefor shall be prima facie evidence deemed to come into effect initially on the date such Person becomes an Eligible Subsidiary hereunder (i.e., to constitute a change in law subsequent to the Applicable Date for purposes of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsthis Section 8.03).
Appears in 1 contract
Samples: Credit Agreement (Praxair Inc)
Increased Cost and Reduced Return. (a) If, a Change after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law but, if not having the force of law, compliance with which is customary in the relevant jurisdiction) of any Governmental Authority such authority, central bank or comparable agency issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):hereof:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related with respect to its Eurocurrency Loans, its Notes, its Letters of Credit, or its participation in any Loanthereof, any Reimbursement Obligation, Obligations owed to it or its obligation to advance or maintain Loans or make Eurocurrency Loans, issue any Letter Letters of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Eurocurrency Loans, Letters of Credit Credit, or Reimbursement Obligation or any participations in any thereof, therein or any other amounts due under this Agreement related to in respect of its Eurocurrency Loans, Letters of Credit, Reimbursement Obligations or participations therein, any Reimbursement Obligations owed to it, or its obligation to make Eurocurrency Loans, issue Letters a Letter of Credit, or acquire participations therein (other thanexcept for changes in the rate of tax on the overall net income or profits of such Lender or its Lending Office imposed by the jurisdiction in which such Lender or its lending office is incorporated, or in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Lender’s principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesLending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurocurrency Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Eurocurrency Loans, its Notes, its Letters of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Eurocurrency Loans, to issue a Letter of Credit, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any Eurocurrency Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction. In the event any law, rule, regulation or interpretation described above is revoked, declared invalid or inapplicable or is otherwise rescinded, and as a result thereof a Lender is determined to be entitled to a refund from the applicable authority for any amount or amounts which were paid or reimbursed by the Borrower to such Lender hereunder, such Lender shall refund such amount or amounts to the Borrower without interest.
(b) IfIf any Lender or the Administrative Agent shall have determined that the adoption, after the date hereof, of any Agentapplicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital rules heretofore adopted and issued by any governmental authority), or any Issuing Bank reasonably determines that a Change change in Law affecting such Agentthe interpretation or administration thereof after the date hereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or Issuing Bank its Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office directive issued after the date hereof regarding capital adequacy (whether or not having the force of such Lender or such Lender’s or Issuing Bank’s holding companylaw but, if anynot having the force of law, regarding capital compliance with which is customary in the applicable jurisdiction) of any such authority, central bank or liquidity requirements comparable agency, has or would have the effect of reducing the rate of return on such Lender’s’s capital, Issuing Bank’s capital or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks Lender that determines to seek compensation under this Section 9.3 11.3 shall give written notice to notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, Borrower and the Administrative Agent of the circumstances that entitle such Agent, such the Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to 11.3 and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, 11.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive if reasonably determined. The Borrower shall not be obligated to reimburse, compensate or indemnify any Lender with respect to a claim or any portion thereof to the extent such claim or portion thereof arose more than 120 days prior to the notice of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsclaim delivered pursuant to this Section 11.3(c).
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Gallagher Arthur J & Co)
Increased Cost and Reduced Return. (a) IfIf on or after (x) Effective Date, a Change in Lawthe case of any Committed Loan or Letter of Credit or any obligation to make Committed Loans or issue or participate in any Letter of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Currency Loan any such requirement included in an applicable Euro-Currency Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Loans, Fixed Rate Loans or Letters of CreditCredit Liabilities, any Reimbursement Obligations owed to it, or of its participations in any thereof, Notes or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under any of its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated pay, or cause the relevant Borrower to pay pay, to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after Effective Date, the date hereofadoption of any applicable law, any Agentrule or regulation regarding capital adequacy, any Lender or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or reduction, provided that no such demand by any Bank shall include any period commencing earlier than 90 days prior to the Company may prepay all SOFR Loans date of such Lender or obtain the cancellation of all such Letters of Creditdemand.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to Bank will promptly notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of the circumstances that any event of which it has knowledge, occurring after Effective Date, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) If at any time any Subsidiary that is organized in, or conducts business in, a jurisdiction outside the United States becomes an Eligible Subsidiary, all applicable laws, rules and regulations then in effect in such jurisdiction shall be deemed for purposes of Section 8.03(a) to have been adopted at such time and all applicable requests and directives theretofore made by any governmental authority, central bank or comparable agency in such jurisdiction shall be deemed for purposes of Section 8.03(a) to have been made at such time; provided that no Bank shall be obligated under Section 8.03(c) to give notice of any such law, rule, regulation, request or directive, or to designate a different Applicable Lending Office by reason thereof, until an officer of such Bank responsible for administering this Agreement shall have become aware of such law, rule, regulation, request or directive and the relevant consequences thereof.
Appears in 1 contract
Samples: Credit Agreement (Allergan Inc)
Increased Cost and Reduced Return. (a) IfBy way of clarification, a Change and not of limitation, of Section 6.1, if the adoption of any applicable law, rule, regulation or accounting principle, or any change therein, or any change in Lawthe interpretation or administration thereof by any Governmental Authority or Accounting Authority charged with the interpretation or administration thereof, or compliance by any Funding Source, the Agent, the LC Issuer, any Lender Purchaser Agent or Issuing Bank any Purchaser (or its applicable Lending Officecollectively, the “Funding Parties”) with any request or directive (whether or not having the force of law) of any such Governmental Authority issued after the date hereof or Accounting Authority (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
“Regulatory Change”) (ia) subjects any Lender or Issuing Bank (or its applicable Lending Office) Funding Party to any Taxcharge or withholding on or in connection with a Funding Agreement or this Agreement (collectively, duty the “Funding Documents”) or other charge related to any LoanReceivable, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change (b) changes the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal Funding Parties of or interest any amounts payable under any of the Funding Documents (except for changes in the rate of Tax on its Loans, Letters the overall net income of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casesuch Funding Party), (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties, (d) has the effect of reducing the rate of return on such Funding Party’s capital to a level below that which such Funding Party could have achieved but for such adoption, change or Issuing Bank compliance (or its applicable Lending Officetaking into consideration such Funding Party’s policies concerning capital adequacy) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iiie) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is (x) to impose a cost on, or increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Funding Party of participating in, issuing or maintaining its commitment under any Letter of Credit (Funding Document or of purchasing, maintaining its obligation to participate in or to issue funding any Letter of Credit)interest acquired under any Funding Document, or (y) to reduce the amount of any sum received or receivable by, or to reduce the rate of return of, any Funding Party under any Funding Document or (z) to require any payment calculated by such Lender reference to the amount of interests held or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit hereunder, then, subject upon demand by the Agent or the applicable Purchaser Agent, the Seller shall pay to Section 9.3(c)the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy respect to amounts owed to it) or the Administrative Agentapplicable Purchaser Agent (with respect to amounts owed to it or any Purchaser in its Purchaser Group) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and for the basis thereof, account of the Company shall be obligated to pay to such Lender or Issuing Bank Person such additional amount or amounts as will compensate the Agent, such Lender Purchaser Agent or Issuing Bank such Purchaser (or, in the case of any Conduit Purchaser, will enable such Conduit Purchaser to compensate any Funding Source) for such increased cost or reduction.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines . Each Funding Party agrees that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another any event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount operation of this Section 6.2 with respect to claims accruing prior to the ninetieth day preceding such written demand; provided thatFunding Party, it will, if requested by the basis Seller, use reasonable efforts (subject to overall policy considerations of such Funding Party) to designate another office for any credit accommodation affected by such event, provided that such designation is made on such terms that such Funding Party and its office suffer no economic, legal or circumstances in respect regulatory disadvantage, with the object of this Section 9.3 avoiding the consequence of the event giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment operation of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsSection.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a in the case of any Committed Loan or L/C Credit Extension or any obligation to make or participate in Committed Loans or L/C Credit Extensions or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, any Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):Law shall:
(i) subjects impose on any Lender Bank Party or Issuing the London interbank market any other condition affecting this Agreement or Fixed Rate Loans made by such Bank Party or participation therein; or
(or its applicable Lending Officeii) subject any Recipient to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein Taxes (other than, in each case, than (A) Indemnified Taxes, Taxes and (B) Other Connection Taxes described in clauses on gross or net income, profits or revenue (b) including value-added or (c) of the definition of “Excluded Taxes” and (C) Connection Income similar Taxes)) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(iiiii) imposesimpose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank Party (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank Party (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue Letters of Credit make or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of L/C Credit or participation thereinExtensions; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank Party (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of L/C Credit Extension (or of maintaining its obligation to participate in or to issue any Letter of Creditparticipation therein), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank Party (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank Party to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender Bank Party or Issuing Bank such other Recipient (with a copy to the Administrative Agent), (i) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall be obligated to pay to such Lender or Issuing Bank Party such additional amount or amounts as will compensate such Lender Bank Party or Issuing Bank such other Recipient for such increased cost or reduction.
reduction suffered (b) If, after including any amount or amounts equal to any taxes on the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office overall net income of such Lender Bank Party or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on other Recipient payable by such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank Party or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and other Recipient with respect to the policies amount of such Lender’s or Issuing Bank’s holding companypayments required to be made pursuant to this Section 8.03(a)) by an amount as reasonably deemed determined by such Lender Bank Party (which determination shall be made in good faith (and not on an arbitrary or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30capricious basis) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank only if such additional amount or amounts are passed on in a similar manner by such Bank Party to similarly situated borrowers (which are parties to credit or loan documentation containing a provision similar to this Section 8.03(a), as determined by such Bank Party in its reasonable discretion, or (ii) convert such Bank Party's Loans so affected by such Change in Law to Base Rate Loans and pay any related breakage costs pursuant to Section 2.14 and any accrued increased costs pursuant to this Section 8.03.)
(b) If a Bank Party, other than a Defaulting Bank, determines that any Change in Law, will compensate have the effect of increasing the amount of capital required or expected to be maintained by such Lender or Issuing Bank for such reduction suffered or Party based on the Company may prepay all SOFR Loans existence of such Lender Bank Party’s Commitment hereunder or obtain its obligations hereunder, it will notify the cancellation Borrower. This determination will be made on a Bank Party-by-Bank Party basis. The Borrower shall (i) pay to each Bank Party on demand such additional amounts as are necessary to compensate for the increased cost to such Bank Party as a result of all any Change in Law or (ii) convert such Letters Bank Party's Loans so affected by such Change in Law to a Base Rate Loan and pay any related breakage costs pursuant to Section 2.14 and any accrued increased costs pursuant to this Section 8.03. In determining such amount, such Bank Party will act reasonably and in good faith (and not on an arbitrary or capricious basis) and will use averaging and attribution methods which are reasonable, and such Bank Party will pass such costs on to the Borrower only if such costs are passed on in a similar manner by such Bank Party to similarly situated borrowers (which are parties to credit or loan documentation containing a provision similar to this Section 8.03(b)), as determined by such Bank Party in its reasonable discretion. Each Bank Party’s determination of Creditcompensation shall be conclusive if made in accordance with this provision. Each Bank Party, upon determining that any increased costs will be payable pursuant to this Section 8.03(b), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such increased costs, although the failure to give any such notice shall not release or diminish any of the Borrower’s obligations to pay increased costs pursuant to this Section 8.03(b).
(c) Each of Bank Party will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank Party to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithParty, be otherwise disadvantageous to it; provided that such Bank Party. The Borrower hereby agrees to pay the foregoing shall not reasonable costs and expenses incurred by such Bank Party in connection with any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such designation. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank Party claiming compensation under this Section 9.3, and shall furnish a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agenthereunder, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof which shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank Party may use any reasonable averaging and attribution methods.
(d) Failure or delay on the part of any Bank Party to demand compensation pursuant to this Section 8.03 shall not constitute a waiver of such Bank Party’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Bank Party pursuant to this Section 8.03 for any increased costs or reductions incurred more than six months prior to the date that such Bank Party notifies the Borrower and the Administrative Agent of the Change in Law giving rise to such increased costs or reductions and of such Bank Party’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions are retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Federal Reserve Board) ), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the interbank market any other condition affecting ), its Loan Notes evidencing SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain fund SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteLoan Notes with respect thereto (including if any such adoption, change or change in interpretation subjects any Lender to Taxes that increase such cost to, or reduce such amount received or receivable by, such Lender (other than (i) Indemnified Taxes, (ii) Taxes enumerated as excluded from the definition of Indemnified Taxes in Section 11.4(a)(I)(ii)-(iv), and (iii) Connection Income Taxes, in each case, that are imposed on or with respect to a payment hereunder)) by an amount deemed a material amount, then, upon written demand (which written demand shall set forth in reasonable detail the basis for such demand for compensation) by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination Agent and the basis thereofCollateral Agent), the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reductionreduction shall constitute Increased Costs payable by the Borrower pursuant to Sections 9.1(a) and 6.4; provided that, other than with respect to Taxes, such amounts shall be no greater than that which such Lender is generally claiming from its other borrowers similarly situated to Borrower, as reasonably evidenced to the Borrower at the time such amount is requested.
(b) IfIf any Lender shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any Governmental Authority charged with the interpretation or Issuing Bank’s holding companyadministration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, Xxxxxx’s obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed a material amount, then, upon written demand (which written demand shall set forth in reasonable detail the basis for such demand for compensation) by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination Agent and the basis thereofCollateral Agent), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or (to the Company may prepay all SOFR Loans extent funds are available therefor in accordance with the Priority of Payments) shall constitute Increased Costs payable by the Borrower pursuant to Sections 9.1(a) and 6.4; provided that such amount shall be no greater than that which such Lender or obtain is generally claiming from its other borrowers similarly situated to Borrower, as reasonably evidenced to the cancellation of all Borrower at the time such Letters of Creditamount is requested.
(c) Each of Lender will promptly notify the AgentsBorrower, the Lenders Collateral Agent and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to 11.3 and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, not be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, 11.3 and setting forth in reasonable detail a calculation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence delivered in connection with any request for compensation and shall be conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Failure or delay on the part of any Lender to demand compensation under this Section 11.3 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 11.3 for any increased costs or reductions incurred more than six months prior to the earlier of (x) the date on which the applicable Lender has actual knowledge of the event giving rise to such increased costs or reductions and (y) the date on which the applicable Lender should, in the exercise of reasonable care, have knowledge of the event giving rise to such increased costs or reductions; provided that, if the event giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(d) Notwithstanding anything to the contrary contained herein, (i) no Lender shall demand compensation for any increased cost, reduction or capital referred to above in Section 11.3(a) or (b) if it shall not at the time be the general policy and practice of such Lender to demand such compensation in similar circumstances under comparable provisions of other credit agreements from similarly situated borrowers and (ii) all requests, rules, guidelines, requirements and directives promulgated (x) by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority), the Committee of European Banking Supervisors or the United States or foreign regulatory authorities, in each case, pursuant to Basel III or similar capital requirements directive existing on the Closing Date impacting European banks and other regulated financial institutions and (y) pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 11.3, regardless of the date enacted, adopted, issued or implemented.
(e) Notwithstanding anything to the contrary in this Section 11.3, the Borrower shall not be required to pay amounts to any Lender under this Section 11.3 to the extent such amounts would be duplicative of amounts payable by the Borrower under Section 11.
Appears in 1 contract
Samples: Credit Agreement (AB Private Credit Investors Corp)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office), including (if applicable) in its capacity as the Issuing Bank hereunder, with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related with respect to its Eurodollar Loans, its Notes, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement ObligationObligations owed to it, or its obligation to advance or maintain Loans or make Eurodollar Loans, issue any a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its -68- 48 Eurodollar Loans, Letters Letter(s) of Credit Credit, or Reimbursement Obligation or any participations in any thereoftherein, or any other amounts due under this Agreement related to in respect of its Eurodollar Loans, Letters Letter(s) of Credit, Reimbursement Obligations or participations therein, any Reimbursement Obligations owed to it, or its obligation to make Eurodollar Loans, issue Letters a Letter of Credit, or acquire participations therein (other than, except for changes in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) the rate of tax on the overall net income of such Bank or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxesits Lending Office);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement requirements (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Office) or on the United States market for certificates of deposit or the interbank market any other condition affecting its SOFR Eurodollar Loans, Letters its Notes, its Letters(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR make Eurodollar Loans, to issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any a Letter of Credit or participation to participate therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any Eurodollar Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, any AgentBank (including as an Issuing Bank) shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender revisions in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 CXX Xxxx 000, Xxxxxxxx X) xx of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital rules heretofore adopted and issued by any governmental authority), or any Issuing change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank reasonably determines that a Change in Law affecting such Agent, Lender (or Issuing Bank its Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’sBank's capital, Issuing Bank’s capital or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Bank’s 's policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty fifteen (3015) days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each A certificate of a Bank setting forth such amount or amounts as shall be necessary to compensate such Bank or the corporation controlling it as specified in subsection (b) above shall be delivered to the Borrower (with a copy to the Agent) and shall be conclusive absent manifest error. The Borrower shall be obligated to pay each Bank the amount shown as due on any such certificate delivered by it within 10 Business Days after their receipt of the Agentssame.
(d) In the event any Bank (including, if applicable, in its capacity as an Issuing Bank) delivers a certificate pursuant to subsection (c) above or gives notice under Section 9.1 that it will not fund or maintain Eurodollar Loans, the Lenders Borrower may require, at their expense, such Bank to assign (in accordance with Section 12.12 hereof) all its interests, rights and obligations hereunder (including all of its Commitment, the Loans at the time owing to it, and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company andNotes and participations in Letters of Credit held by it or, in the case of a Lender or an assignment solely of an Issuing Bank Bank's rights and obligations, solely its rights and obligations in such capacity) to a financial institution specified by the Borrower (a "Substitute Bank"), provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other governmental agency or instrumentality, (ii) the Borrower shall have received the written consent of the Agent and Issuing Banks (other than the Administrative affected Issuing Bank in the case of an assignment by it in such capacity), which consent shall not be unreasonably withheld, to such assignment and (iii) the Borrower shall have paid to the assigning Bank all monies then due to it under the Credit Documents (including pursuant to this Section 9.3) with the Substitute Bank purchasing all accrued but not yet due Obligations owed such assigning Bank.
(e) Promptly after any Bank becomes aware of any circumstance which will, in its sole judgment, result in a request for increased compensation pursuant to Section 9.3(b), such Bank shall notify the Borrower thereof (with a copy to the Agent, ). Failure on the Administrative part of any Bank so to notify the Borrower or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any period shall not constitute a waiver of such Bank's right to demand compensation with respect to such period or any other period. The protection of this Section 9.3 shall be available to each Bank and Agent regardless of any possible contention of the circumstances that entitle such Agent, such Lender invalidity or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge inapplicability of the law, rule, order regulation, guideline or interpretation other change or occurrence of another event giving rise to a claim hereunder. In any event the Company condition which shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis occurred or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsbeen imposed.
Appears in 1 contract
Samples: Credit Agreement (Allen Group Inc)
Increased Cost and Reduced Return. (a) IfIf the adoption after the date hereof of any applicable law, a Change rule or regulation, or any change therein after the date hereof, or any change after the date hereof in Lawthe interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any AgentWindmill Funding Source, the Agent or any Lender or Issuing Bank Purchaser (or its applicable Lending Officecollectively, the “Funding Parties”) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof of any such Governmental Authority (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
“Regulatory Change”) (ia) subjects any Lender or Issuing Bank (or its applicable Lending Office) Funding Party to any Taxadditional charge or withholding on or in connection with a Funding Agreement or this Agreement (collectively, duty the “Funding Documents”) or other charge related to any LoanReceivable, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change (b) changes the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal Funding Parties of any amounts payable under any of the Funding Documents, other than any Taxes imposed on or interest on its Loans, Letters measured by the net income of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casethe Funding Party, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties, (d) has the effect of reducing the rate of return on such Funding Party’s capital to a level below that which such Funding Party could have achieved but for such adoption, change or Issuing Bank compliance (or its applicable Lending Officetaking into consideration such Funding Party’s policies concerning capital adequacy) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iiie) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is (x) to impose a cost on, or increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Funding Party of participating in, issuing or maintaining its commitment under any Letter of Credit (Funding Document or of purchasing, maintaining its obligation to participate in or to issue funding any Letter of Credit)interest acquired under any Funding Document, or (y) to reduce the amount of any sum received or receivable by, or to reduce the rate of return of, any Funding Party under any Funding Document or (z) to require any payment calculated by such Lender reference to the amount of interests held or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit hereunder, then, subject to Section 9.3(c)upon demand by the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy the Seller shall pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and Agent for the basis thereof, account of the Company shall be obligated to pay to such Lender or Issuing Bank Person such additional amount or amounts as will compensate the Agent or such Lender or Issuing Bank Purchaser (or, in the case of Windmill, will enable Windmill to compensate any Windmill Funding Source) for such increased cost or reduction.
. Notwithstanding the foregoing, the Seller shall only be obligated to a Windmill Funding Source under this Section to the extent Windmill is obligated to reimburse the Windmill Funding Source for the applicable amount (b) If, after the date hereof, it being understood that any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting limitations on recourse to Windmill for such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lenderamounts do not limit Windmill’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence obligations for purposes of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative AgentSection) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case terms of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsFunding Agreement.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after (x) November 14, a Change 1996, in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Applicable Lending Office) to any Taxtax, duty or other charge related with respect to any Loanits Fixed Rate Loans, Reimbursement Obligation, its Note or its obligation to advance or maintain Loans or issue any Letter of Creditmake Fixed Rate Loans, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Fixed Rate Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, Fixed Rate Loans or its obligation to make Loans, issue Letters Fixed Rate Loans (except for changes in the rate of Credit, tax on the overall net income of such Bank or acquire participations therein (other than, its Applicable Lending Office imposed by the United States of America or any State or political subdivision thereof or imposed by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Bank's principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesApplicable Lending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (A) with respect to any CD Loan any such requirement included in an applicable Domestic Reserve Percentage and (B) with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage), special deposit, insurance assessment (excluding, with respect to any CD Loan, any such requirement reflected in an applicable Assessment Rate) or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance or maintain SOFR make Fixed Rate Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.its
Appears in 1 contract
Samples: Credit Agreement (Masco Corp /De/)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any change therein, or any change in Lawthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) or any L/C Issuer (or its Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related with respect to any Loan, Reimbursement Obligation, or its obligation to advance or maintain LIBOR Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its EURIBOR Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations thereinNotes, or its obligation to make LIBOR Loans or EURIBOR Loans;
(ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any LIBOR Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Lender (or its Lending Office) or any L/C Issuer (or its Lending Office) or shall impose on any Lender (or its Lending Office) or any L/C Issuer (or its Lending Office) or on the interbank market any other condition affecting its LIBOR Loans, issue Letters its Notes, its EURIBOR Loans, its CAD CDOR Loans, its Letter(s) of Credit, or acquire participations therein its participation in any thereof, any Reimbursement Obligation owed to it, or its obligation to make LIBOR Loans, EURIBOR Loans or CAD CDOR Loans, or to issue a Letter of Credit, or to participate therein; or
(iii) shall subject any Lender (or its Lending Office) or any L/C Issuer (or its Lending Office) to any Taxes (other than, in each case, than (A) Indemnified Taxes, (B) Taxes described in clauses (b) or through (cd) of the definition of “Excluded Taxes” Taxes and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or on its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or on its participations in any thereofobligation to make Loans, or to issue a Letter of Credit, or to participate therein, or its obligation to advance deposits, reserves, other liabilities or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation thereincapital attributable thereto; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or such L/C Issuer (or its Lending Office) of making, converting to, continuing making or maintaining any LIBOR Loan, EURIBOR Loan or to increase CAD CDOR Loans (or in the cost to such Lender or such Issuing Bank case of participating inTaxes, any Loan), issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) or such L/C Issuer (whether of principal, interest or any other amountits Lending Office) in connection therewith under this Agreement or its Noteunder any other Loan Document with respect thereto, by an amount deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company U.S. Borrower shall be obligated pay or cause the relevant Loan Party to pay to such Lender or Issuing Bank L/C Issuer such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such increased cost or reduction; provided that such amounts shall be no greater than amounts that such Lender or L/C Issuer is generally charging other borrowers or account parties similarly situated to and of similar creditworthiness to the Borrowers.
(b) If, after the date hereof, any AgentLender, any Lender L/ C Issuer, or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy or liquidity (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or Issuing Bank its Lending Office) or [Senior Secured Revolving Credit Agreement] any lending office of L/C Issuer (or its Lending Office) or any corporation controlling such Lender or such Lender’s L/C Issuer with any request or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have had the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or L/C Issuer’s or such corporation’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank L/C Issuer or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing BankL/C Issuer’s or such corporation’s policies and the policies of such Lender’s with respect to capital adequacy or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company each Borrower shall pay to such Lender or Issuing Bank L/C Issuer, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such reduction suffered or the Company may prepay all SOFR Loans of reduction; provided that such amounts shall be no greater than amounts that such Lender or obtain L/C Issuer is generally charging other borrowers or account parties similarly situated to and of similar creditworthiness to the cancellation of all such Letters of CreditBorrowers.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case A certificate of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, L/C Issuer claiming compensation under this Section 9.3, 10.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereofconclusive if reasonably determined. In determining such amount, subject to the provisos at the end of clauses (a) and (b) above, such Lender or such Issuing Bank L/C Issuer may use any reasonable averaging and attribution methods. Notwithstanding the foregoing, the Borrowers shall not be obligated to compensate any Lender or L/C Issuer for any increased costs or reductions incurred more than 90 days prior to the date the Lender or L/C Issuer, as the case may be, notifies such Borrower of its intention to claim compensation therefor and no Lender shall be entitled to claim any amounts pursuant to this Section 10.3, unless such Lender is then generally claiming or generally will claim such amounts in similar circumstances under comparable credit facilities with similar provisions to this Section 10.3 to which it is a party with borrowers that are similarly situated to and of similar creditworthiness to the relevant Borrower.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after (x) the Amendment Effective Date in Lawthe case of any Committed Loan or Letter of Credit or any obligation to make Committed Loans or Swingline Loans or participate in Letters of Credit or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank Party (or its applicable Lending Officeother than the Agents) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency, after the date such Agentshall impose, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge assessment or similar requirement (including, without limitation, including any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem but excluding (i) with respect to any Euro-Dollar Loan, any such requirement included in an applicable Euro- Dollar Reserve Percentage and (ii) with respect to any CD Loan, any such requirement included in an applicable Domestic Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank Party (or its applicable Lending Officeother than the Agents) or imposes shall impose on any Lender or Issuing Bank Party (or its Lending Officeother than the Agents) or on the London interbank market or the United States market for certificates of deposit any other condition affecting its SOFR Fixed Rate Loans, Letters of Creditits Note, any Reimbursement Obligations owed its obligation to it, make Fixed Rate Loans or its participations in any thereofSwingline Loans, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; Credit, and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) Party of making, converting to, continuing making or maintaining its Fixed Rate Loans or participating in any Loan, Letter of Credit or to increase the cost to such Lender or such Issuing the Swingline Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), the Swingline Commitment or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith Party under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank Party to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank Party (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Vencor shall be obligated to pay to such Lender or Issuing Bank Party such additional amount or amounts as will compensate such Lender or Issuing Bank Party for such increased cost or reduction; provided that Vencor shall not be liable to any Bank Party in respect of any such increased cost or reduction with respect to any period of time more than three months before Vencor receives the notice required by the first sentence of Section 8.03(c) or more than six months before Vencor receives the relevant certificate referred to in the second sentence of Section 8.03(c).
(b) IfIf any Bank Party (other than the Agents) shall have determined that, after the date hereofAmendment Effective Date, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank Party (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank Party (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank Party to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank Party (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Vencor shall pay to such Lender or Issuing Bank Party such additional amount or amounts as will compensate such Lender or Issuing Bank it for such reduction; provided that Vencor shall not be liable to any Bank Party in respect of any such reduction suffered or with respect to any period of time more than three months prior to the Company may prepay all SOFR Loans date of such Lender or obtain the cancellation notice required by the first sentence of all such Letters of CreditSection 8.03(c).
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank Party (other than the Administrative Agent, Agents) will promptly notify Vencor and the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event of which it has knowledge, occurring after the Company shall have no any obligation Amendment Effective Date, which will entitle it to pay any amount with respect compensation pursuant to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to 8.03 and will designate a different Applicable Lending Office or LC Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithParty, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, such Bank Party claiming compensation under this Section 9.3, 8.03 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agenthereunder, such Lender or such Issuing Bank, as applicable, describing showing the calculation thereof in reasonable detail the calculations thereof detail, shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank Party may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Vencor Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, in the case of any Committed Loan or any obligation to make a Change Committed Loan or (y) the date of the related Competitive Bid Request, in Lawthe case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding, with respect to any Euro-Currency Loan or Competitive LIBOR Loan any such requirement included in an applicable Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, its Note (if applicable), its portion of the Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
its obligation to make Fixed Rate Loans (iiicollectively, its `Covered Credits') imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) (excluding any Taxes, Other Taxes and Excluded Taxes (as each such term is defined in Section 8.04)) of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Covered Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote (if applicable) with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below accompanied by a certificate setting forth in reasonable detail its calculation of such determination and the basis thereofincreased cost or reduction, the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule, guideline or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency (collectively, a `Change in Law affecting such AgentLaw'), Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below accompanied by a certificate setting forth in reasonable detail its calculation of such determination and the basis thereofreduction, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered reduction; provided that to the extent that (i) a Bank shall increase its level of capital above the level maintained by such Bank on the date of this Agreement and there has not been a Change in Law or (ii) there has been a Change in Law and a Bank shall increase its level of capital by an amount greater than the increase attributable (taking into consideration the same variables taken into consideration in determining the level of capital maintained by such Bank on the date of this Agreement) to such Change in Law, the Company shall not be required to pay any amount or amounts under this Agreement with respect to any such increase in capital. Thus, for example, a Bank which is `adequately capitalized' (as such term or any similar term is used by any applicable bank regulatory agency having authority with respect to such Bank) may prepay all SOFR Loans not require the Company to make payments in respect of increases in such Lender Bank's level of capital made under the circumstances described in clause (i) or obtain the cancellation of all (ii) above which improve its capital position from `adequately capitalized' to `well capitalized' (as such Letters of Creditterm or any similar term is used by any applicable bank regulatory agency having authority with respect to such Bank).
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to Bank will promptly notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth in reasonable detail its calculation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Notwithstanding the foregoing subsections (a) and (b) of this Section, the Company shall only be obligated to compensate any Bank for any amount arising or accruing during (i) any time or period commencing not more than (x) in the case of subsection (a), six months and (y) in the case of subsection (b), three months, prior to the date on which such Bank notifies the Administrative Agent and the Company that it proposes to demand such compensation and identifies to the Administrative Agent and the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (ii) any time or period during which, because of the retroactive application of such statute, regulation or other basis, such Bank did not know that such amount would arise or accrue.
Appears in 1 contract
Samples: Credit Agreement (Honeywell Inc)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any change therein, or any change in Lawthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) or any L/C Issuer (or its Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects any Lender shall impose, modify or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any LIBOR Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes any L/C Issuer (or its Lending Office) or shall impose on any Lender (or Issuing Bank its Lending Office) or any L/C Issuer (or its Lending Office) or on the interbank market any other condition affecting its SOFR LIBOR Loans, Letters its Notes, its CAD CDOR Loans, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations obligation to make LIBOR Loans or CAD CDOR Loans, or to issue a Letter of Credit, or to participate therein; or
(ii) shall subject any Lender (or its Lending Office) or any L/C Issuer (or its Lending Office) to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its Loans, its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligation owed to it, or on its obligation to advance or maintain SOFR make Loans, or to issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any a Letter of Credit Credit, or participation to participate therein, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or such L/C Issuer (or its Lending Office) of making, converting to, continuing making or maintaining any LIBOR Loan or CAD CDOR Loans (or in the case of Taxes, any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in), issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) or such L/C Issuer (whether of principal, interest or any other amountits Lending Office) in connection therewith under this Agreement or its Noteunder any other Loan Document with respect thereto, by an amount deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company U.S. Borrower shall be obligated pay or cause the relevant Loan Party to pay to such Lender or Issuing Bank L/C Issuer such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such increased cost or reduction; provided that such amounts shall be no greater than amounts that such Lender or L/C Issuer is generally charging other borrowers or account parties similarly situated to and of similar creditworthiness to the Borrowers.
(b) If, after the date hereof, any AgentLender, any Lender L/ C Issuer, or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy or liquidity (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or Issuing Bank its Lending Office) or [Senior Secured Revolving Credit Agreement] any lending office of L/C Issuer (or its Lending Office) or any corporation controlling such Lender or such Lender’s L/C Issuer with any request or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have had the effect of reducing the rate of return on such Lender’s, Issuing Bank’s or L/C Issuer’s or such corporation’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Issuing Bank L/C Issuer or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing BankL/C Issuer’s or such corporation’s policies and the policies of such Lender’s with respect to capital adequacy or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company each Borrower shall pay to such Lender or Issuing Bank L/C Issuer, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such reduction suffered or the Company may prepay all SOFR Loans of reduction; provided that such amounts shall be no greater than amounts that such Lender or obtain L/C Issuer is generally charging other borrowers or account parties similarly situated to and of similar creditworthiness to the cancellation of all such Letters of CreditBorrowers.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case A certificate of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, L/C Issuer claiming compensation under this Section 9.3, 10.310.4 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereofconclusive if reasonably determined. In determining such amount, subject to the provisos at the end of clauses (a) and (b) above, such Lender or such Issuing Bank L/C Issuer may use any reasonable averaging and attribution methods. Notwithstanding the foregoing, the Borrowers shall not be obligated to compensate any Lender or L/C Issuer for any increased costs or reductions incurred more than 90 days prior to the date the Lender or L/C Issuer, as the case may be, notifies such Borrower of its intention to claim compensation therefor and no Lender shall be entitled to claim any amounts pursuant to this Section 10.310.4, unless such Lender is then generally claiming or generally will claim such amounts in similar circumstances under comparable credit facilities with similar provisions to this Section 10.310.4 to which it is a party with borrowers that are similarly situated to and of similar creditworthiness to the relevant Borrower.
Appears in 1 contract
Samples: Credit Agreement (J M SMUCKER Co)
Increased Cost and Reduced Return. (a) If, a Change after the date hereof, the adoption of any applicable law, rule or regulation, or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any AgentInvestor or the Swingline Investor (or, any Lender or Issuing Bank (or in each case, its applicable Lending Applicable Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof such authority, central bank or comparable agency (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (Aa “Change in Law”) Indemnified Taxesshall impose, (B) Taxes described in clauses (b) modify or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, including any such requirement imposed by the Federal Reserve Board) Board (but excluding with respect to any Advance or Swingline Advance any such requirement reflected in an applicable Euro-Dollar Reserve Percentage)), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender such Investor or Issuing Bank the Swingline Investor (or or, in each case, its applicable Lending Applicable Office) or imposes shall impose on any Lender such Investor or Issuing Bank the Swingline Investor (or or, in each case, its Lending Applicable Office) or on the London interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, Advances or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
Swingline Advances (iiias the case may be) imposes on any Lender or any Issuing Bank which interest is calculated based on the LIBO Rate or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; Notes and the result of any of the foregoing is to increase the cost to such Lender Investor or Issuing Bank the Swingline Investor (or or, in each case, its applicable Lending Applicable Office) of making, converting to, continuing making or maintaining any Loan, such Advance or to increase Swingline Advance (as the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), case may be) or to reduce the amount of any sum received or receivable by such Lender Investor or Issuing Bank the Swingline Investor (or or, in each case, its applicable Lending Applicable Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under the Notes with respect thereto (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Investor or the Swingline Investor (as the case may be) pursuant to the laws of the jurisdiction in which it is organized, the jurisdiction in which its NoteApplicable Office is located or any other jurisdiction in which such Investor or the Swingline Investor (as the case may be) is subject to net income tax, or, in each case, any political subdivision thereof), by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty upon demand (30) days after receipt of which demand shall be accompanied by a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting which sets forth in reasonable detail such determination and the basis thereof, for such demand for compensation) by such Investor or the Company Swingline Investor (as the case may be) the Issuer shall be obligated to pay to such Lender Investor or Issuing Bank the Swingline Investor (as the case may be) such additional amount or amounts as will compensate such Lender Investor or Issuing Bank the Swingline Investor (as the case may be) for such increased cost or reduction; provided that such amounts shall be no greater than that which such Investor or the Swingline Investor (as the case may be) is generally charging other debtors similarly situated to the Issuer.
(b) IfIf any Investor or the Swingline Investor shall have determined that, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Investor or the Swingline Investor (as the case may be) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, Investor’s or the Letters of Credit issued by any Issuing Bank, Swingline Investor’s (as the case may be) obligations hereunder to a level below that which such Lender Investor or Issuing Bank or such Lender’s or Issuing Bank’s holding company the Swingline Investor (as the case may be) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender Investor or Issuing Bank the Swingline Investor (as the case may be) to be material, then, subject to Section 9.3(c), from time to time, within thirty upon demand (30) days after its receipt of which demand shall be accompanied by a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting which sets forth in reasonable detail such determination and the basis thereof, for such demand for compensation) by such Investor or the Company Swingline Investor (as the case may be) the Issuer shall pay to such Lender or Issuing Bank Investor such additional amount or amounts as will compensate such Lender Investor or Issuing Bank the Swingline Investor (as the case may be) for such reduction suffered reduction; provided that such amount shall be no greater than that which such Investor or the Company Swingline Investor (as the case may prepay all SOFR Loans of such Lender be) is generally charging or obtain seeking to charge other debtors similarly situated to the cancellation of all such Letters of CreditIssuer.
(c) Each of the Agents, the Lenders Investor and the Issuing Banks Swingline Investor shall promptly notify the Issuer and the Investor Agent of any change in circumstance that determines would entitle it (i) to seek compensation under this Section 9.3 shall give written notice 8.2 or under Section 8.3 or (ii) to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Alternate Base Rate under Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof8.1. Each of the Agents, the Lenders Investor and the Issuing Banks Swingline Investor shall use reasonable efforts to designate a different Applicable Office if such designation will avoid the need for, or reduce the amount of, such compensation, and any payment compensation to be paid pursuant to this Section 8.2 or 8.3 or would avoid institution of the Alternate Base Rate under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation 8.1 and will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, not be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank such Investor or the obligations of Swingline Investor, as the Company under this Section 9.3case may be. A certificate of any Agent, any Lender such Investor or any Issuing Bank, as applicable, the Swingline Investor claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank Investor and the Swingline Investor may use any reasonable averaging and attribution methods. In addition, neither Section 8.2(a) nor Section 8.2(b) shall apply to Taxes (payments in respect of which are intended to be covered, if at all, by Section 8.3).
(d) Failure or delay on the part of any Investor or the Swingline Investor to demand compensation pursuant to this Section 8.2 shall not constitute a waiver of such Investor’s or the Swingline Investor’s right to demand such compensation; provided that the Issuer shall not be required to compensate an Investor or the Swingline Investor pursuant to this Section 8.2 for any increased costs or reductions incurred more than three months prior to the date that such Investor or the Swingline Investor (as the case may be) notifies the Issuer of the Change in Law giving rise to such increased costs or reductions and of such Investor’s or the Swingline Investor’s (as the case may be) intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding anything to the contrary contained herein, none of any Investor or the Swingline Investor shall demand compensation for any increased cost, reduction or capital referred to above in Section 8.2(a) or (b) if it shall not at the time be the general policy and practice of such Investor or the Swingline Investor (as the case may be) to demand such compensation in similar circumstances under comparable provisions of other agreements from similarly situated debtors.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change in Law, If on or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):any Change in Law
(i) subjects any Lender shall impose, modify or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Term SOFR Loan any such requirement with respect to which such Lender is entitled to compensation during the relevant Interest Period under Section 2.15), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit (including letters of credit and participations therein) extended or participated in by, any Lender (or Issuing Bank its applicable Lending Office);
(ii) shall impose on any Lender (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement its Term SOFR Loans, its Notes or Loans made by such its obligation to make Term SOFR Loans; or
(iii) shall subject any Lender or Issuing Bank Agent to any taxes (other than (A) Taxes, (B) taxes described in (i), (ii), (iii) or any Letter (iv) of Credit the exclusions from Taxes and (C) Other Taxes) on its loans, loan principal, letters of credit, commitments, or participation thereinother obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any Term SOFR Loan (or, in the case of a Change in Law with respect to taxes, any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), ) or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital liquidity of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s its policies with respect to capital adequacy or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding companyliquidity) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.reduction. #95372686v23
(c) Each of Lender will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts necessary to be paid to it hereunder and accompanied by a statement prepared by compensate such Agent, such Lender or such Issuing BankLender, as applicablethe case may be, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of manifest error.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender, as the case may be, notifies the Borrower of the correctness Change in Law giving rise to such increased costs or reductions and of such Lender's intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Consolidated Edison Co of New York Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date of this Amended Agreement, a Change in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereofof this Amended Agreement, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by hereunder, together with the basis for determining such Agentadditional amounts, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may agrees to act in good faith and to use any reasonable averaging and attribution methods.
(d) In the event any Bank shall seek compensation pursuant to this Section, the Borrower may give notice to such Bank (with copy to the Administrative Agent) that it wishes to seek one or more financial institutions (which may be one or more of the Banks) to assume the Commitment of such Bank and to purchase its outstanding Loans and Note and its interest in any outstanding Letters of Credit. Each Bank requesting compensation pursuant to this Section agrees to sell its Commitment, Loans, Note and interest in this Agreement and any other credit documents to any such financial institution pursuant to, and subject to the conditions contained in Section 9.06.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law but, if not having the force of law, compliance with which is customary in the relevant jurisdiction) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer to any Taxtax, duty or other charge related with respect to its Eurocurrency Loans, its Notes, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation, Obligations owed to it or its obligation to advance or maintain Loans or make Eurocurrency Loans, issue any a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer of the principal of or interest on its Eurocurrency Loans, Letters Letter(s) of Credit Credit, or Reimbursement Obligation or any participations in any thereof, therein or any other amounts due under this Agreement related to in respect of its Eurocurrency Loans, Letters Letter(s) of Credit, Reimbursement Obligations or participations therein, any Reimbursement Obligations owed to it, or its obligation to make Eurocurrency Loans, issue Letters a Letter of Credit, or acquire participations therein (other than, except for changes in each case, the rate of tax on the overall net income or profits of such Bank (A) Indemnified Taxes, (B) Taxes described in clauses (bor its Lending Office) or the L/C Issuer imposed by the jurisdiction in which such Bank (cor its Lending Office) of or the definition of “Excluded Taxes” and L/C Issuer is incorporated or in which such Bank's or L/C Issuer's principal executive office or (CLending Office) Connection Income Taxesis located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge capital or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding with respect to any Eurocurrency Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or the L/C Issuer or shall impose on any Bank (or its Lending Office) or the L/C Issuer or on the interbank market any other condition affecting its SOFR Eurocurrency Loans, Letters its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or its participations in any thereofobligation to make Eurocurrency Loans, to issue a Letter of Credit, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or the L/C Issuer of making, converting to, continuing making or maintaining any Eurocurrency Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith the L/C Issuer under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender Bank or Issuing Bank the L/C Issuer to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender Bank or Issuing Bank the L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender Bank or Issuing Bank the L/C Issuer such additional amount or amounts as will compensate such Lender Bank or Issuing Bank the L/C Issuer for such increased cost or reduction; PROVIDED, HOWEVER, that such Bank or the L/C Issuer shall promptly notify the Borrower of an event which might cause it to seek compensation, and the Borrower shall be obligated to pay only such compensation which is incurred or which arises after the date ninety (90) days prior to the date such notice is given. In the event any law, rule, regulation or interpretation described above is revoked, declared invalid or inapplicable or is otherwise rescinded, and as a result thereof a Bank or the L/C Issuer is determined to be entitled to a refund from the applicable authority for any amount or amounts which were paid or reimbursed by the Borrower to such Bank or the L/C Issuer hereunder, such Bank or the L/C Issuer shall refund such amount or amounts to the Borrower without interest.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Each Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks L/C Issuer that determines to seek compensation under this Section 9.3 shall give written notice to notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, Borrower and the Administrative Agent of the circumstances that entitle such Agent, such Lender the Bank or such Issuing Bank the L/C Issuer to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole reasonable judgment of such Agent, such Lender Bank or such Issuing Bank made in good faiththe L/C Issuer, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing such Bank or the obligations of the Company under this Section 9.3L/C Issuer. A certificate of any Agent, any Lender Bank or any Issuing Bank, as applicable, the L/C Issuer claiming compensation under this Section 9.3, 9.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender Bank or such Issuing Bank the L/C Issuer may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Jones Lang Lasalle Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or any Letter of Credit or any obligation to make Committed Loans or to issue or participate in Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Dollar Loan any such requirement with respect to which such Lender is entitled to compensation for the relevant Interest Period under Section 2.17), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, its Notes, its participation in the Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Credit or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, to issue or participate in Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (Fixed Rate Loan or of issuing, maintaining its obligation to participate or participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 30 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Lender will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Each such certificate shall be accompanied by such information as the Borrower may reasonably request as to the computation set forth therein. No payment made to any Lender under this Section shall duplicate any other payments made to such Lender under any other provision of this Agreement.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIn the event --------------------------------- that the adoption of any applicable law, a Change rule or regulation, or any change therein or in Lawthe interpretation or application thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) Participant with any request or directive after the date hereof (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects any Lender does or Issuing Bank (or its applicable Lending Office) shall subject such Participant to any Tax, duty additional tax of any kind whatsoever with respect to the Operative Documents or other charge related to any Loan, Reimbursement Obligationpurchase of a Participation Interest in any Advance, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis or the applicable rate of taxation of payments to any Lender or Issuing Bank (or such Participant of its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Participation Interest or any other amounts due under this Agreement related to its Loansamount payable hereunder (except for the imposition of or change in any tax on or measured by the overall net income of such Participant including, Letters without limitation, any tax that qualifies as an "income tax" within the meaning of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” United States Treasury Regulation Section 1.901-2 and (C) Connection Income Taxeswhich is not an Imposition);
(ii) imposesdoes or shall impose, modifies modify or deems hold applicable any reserve, special deposit, insurance assessment, compulsory loan, insurance charge loan or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets ofheld by, or deposits with or other liabilities in or for the account of, advances or loans by, or other credit extended by, or participated in any other acquisition of funds by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes office of such Participant which are not otherwise included in determination of the rate of interest on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereofAdvances hereunder; or
(iii) imposes does or shall impose on any Lender or any Issuing Bank or the London interbank market such Participant any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) Participant of making, converting to, continuing purchasing or maintaining its Participation Interest in any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), Advance or to reduce the any amount of receivable hereunder with respect thereto, then in any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereofcase, the Company Lessee shall be obligated promptly pay such Participant, upon its demand, any additional amounts necessary to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank Participant for such increased cost or reductionreduced amount receivable which such Participant deems to be material as determined by such Participant.
(b) IfIf any Participant shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any Governmental Authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Participant (or any entity directly or indirectly controlling such Participant) as a consequence of this Agreement, such Participant's obligations under the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, Operative Documents to a level below that which such Lender Participant (or Issuing Bank any entity directly or indirectly controlling such Lender’s or Issuing Bank’s holding company Participant) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank Participant to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank Participant (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Lessee shall pay to such Lender or Issuing Bank Participant such additional amount or amounts as will compensate such Lender Participant (or Issuing Bank its parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each Participant will promptly notify the Lessee and the Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Participant to compensation pursuant to this Section and will, if practicable, with the consent of the AgentsLessee (which consent shall not unreasonably be withheld), the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of designate a Lender different Funding Office or an Issuing Bank take any other than the Administrative Agent, the Administrative Agent of the circumstances that entitle reasonable action if such Agent, such Lender designation or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to action will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithParticipant, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Participant. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Participant claiming compensation under this Section 9.3, and setting forth in reasonable detail its computation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank Participant may use any reasonable averaging and attribution methods. This Section shall survive the termination of this Participation Agreement and payment of the outstanding Advances and Participation Interests.
Appears in 1 contract
Samples: Participation Agreement (Vitesse Semiconductor Corp)
Increased Cost and Reduced Return. (a) IfIf on or after the date hereof, a Change the adoption of any applicable law, rule or regulation, or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) of any Class with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency shall:
(i) subjects any Lender impose, modify or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge assessment or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) of any Class;
(ii) subject any Bank of any Class or imposes any Issuing Bank to any Taxes (other than (A) Taxes on payments under this Agreement, (B) Other Taxes and (C) Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or Issuing Bank (or its Applicable Lending Office) of any Class or on the any applicable interbank market any other condition affecting its SOFR LoansBSBY Rate Loans or Euro-Currency Loans of any Class, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance make BSBY Rate Loans or maintain SOFR Loans, issue Letters Euro-Currency Loans of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation thereinClass; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing any Class of making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Fixed Rate Loan of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit)Class, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNotes with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrowers or Additional Borrowers, as the case may be, shall be obligated to jointly and severally pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided that the Borrowers or such Additional Borrower shall not be obligated to compensate such Bank for any increased cost or reduction incurred more than 60 days prior to the receipt by the Borrowers or such Additional Borrower of the notice contemplated by subsection 8.3(c) below (except that, if the applicable event giving rise to such increased costs or reductions is retroactive, then the 60-day period referred to above shall be extended to include the period of retroactive effect thereof). The Banks acknowledge and agree that the foregoing subsection (a) creates no right to demand payment of additional amounts in respect of laws, rules and regulations, as in effect and interpreted and administered on the date hereof. For purposes of clause (ii) of this Section 8.3(a), the term “Bank” includes the Administrative Agent.
(b) IfIf any Bank of any Class shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy or liquidity, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any Governmental Authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 30 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company applicable Borrower or Additional Borrower, as the case may be, shall jointly and severally pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing its Parent) for such reduction; provided that such Borrower or such Additional Borrower shall not be obligated to compensate such Bank for any reduction incurred more than 60 days prior to the receipt by such reduction suffered Borrower or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all Additional Borrower from such Letters of Credit.
(c) Each Bank of the Agentsnotice contemplated by subsection 8.3(c) below (except that, if the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another applicable event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation reductions is retroactive, then such 90the 60-day period referred to in this sentence above shall be extended to include the period with of retroactive effect thereof). The Banks acknowledge and agree that the foregoing subsection 8.3(b) creates no right to demand payment of additional amounts in respect of laws, rules and regulations regarding capital adequacy as in effect and interpreted and administered on the date hereof.
(c) Each of the Agents, the Lenders Bank will notify Allegion plc and the Issuing Banks shall use reasonable efforts Administrative Agent within 90 days of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to itsuch Bank; provided that the foregoing if a Bank shall not in have so notified Allegion plc within 90 days of such event, such Bank may not seek compensation for any way affect period beginning prior to the rights date upon which Allegion plc is notified of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such event. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the calculation of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) Notwithstanding anything herein to the contrary, for purposes of paragraphs (a) and (b) of this Section 8.3, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case, pursuant to Basel III, shall be deemed to be a change in law, rule or regulation regardless of the date enacted, adopted, promulgated or issued; provided that a Bank may be compensated under paragraph (a) or (b) of this Section 8.3 for any change in law, rule or regulation described in this paragraph (d) only if such Bank requests compensation for increased costs associated with any such change in law, rule or regulation from similarly-situated borrowers under comparable credit facilities.
Appears in 1 contract
Samples: Credit Agreement (Allegion PLC)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) ), including the Agent in its capacity as the issuer of Letters of Credit or Agent Letters of Credit, with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related to any Eurodollar Loan, Letter of Credit, Agent Letters of Credit or Reimbursement Obligation, or its participation in any thereof, or its obligation to advance or maintain Loans Eurodollar Loans, issue Letters of Credit or issue any Letter Agent Letters of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Eurodollar Loans, Letters of Credit Credit, or Reimbursement Obligation or any participations in any thereoftherein, or any other amounts due under this Agreement related to its Eurodollar Loans, Letters of Credit, Agent Letters of Credit, Reimbursement Obligations Obligations, or participations therein, or its obligation to make Eurodollar Loans, issue Letters of Credit, or acquire participations therein (other than, except for changes in each case, (A) Indemnified Taxes, (B) Taxes described the rate of tax on the overall net income of such Lender or its Lending Office imposed by the jurisdiction in clauses (b) which such Lender's principal executive office or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesLending Office is located);; or
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding for any Eurodollar Loan any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Eurodollar Loans, its Letters of Credit, its Agent Letters of Credit, any Reimbursement Obligations Obligation owed to it, or its participations participation in any thereof, or its obligation to advance or maintain SOFR Eurodollar Loans, issue Letters of Credit, issue Agent Letters of Credit or to participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing advancing or maintaining any Eurodollar Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any a Letter of Credit (or of maintaining its obligation to participate in or to issue any an Agent Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its NoteNote(s), by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) Agent pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereofbelow), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, the Agent or any AgentLender shall have determined that the adoption after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, any Lender revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 CXX Xxxx 000, Xxxxxxxx X) xx of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital rules heretofore adopted and issued by any governmental authority), or any Issuing Bank reasonably determines that a Change change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Agent or any Lender (or Issuing Bank its Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the Agent's or such Lender’s's capital, Issuing Bank’s capital or on the capital of any corporation controlling the Agent or such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which the Agent or such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration the Agent's or such Lender’s or Issuing Bank’s 's policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by the Agent or such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) days after its receipt of a certificate from the Agent or such Lender or Issuing Bank (with a copy to the Administrative Agent) Agent pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereofbelow), the Company Borrower shall pay to the Agent or such Lender or Issuing Bank such additional amount or amounts as will compensate the Agent or such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders The Agent and the Issuing Banks each Lender that determines to seek compensation under this Section 9.3 8.3 shall give written notice to notify the Company Borrower and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such the Agent or Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such compensation. The Agent and each Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, including without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender the Agent or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company Borrower under this Section 9.38.3, and provided further that no Lender shall be obligated to make its Eurodollar Loans hereunder at any office located in the United States of America. A certificate of any Agent, the Agent or any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, 8.3 and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie rebuttable presumptive evidence thereof in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation (and for purposes of this Agreement, the Xxxx-Xxxxx Act and the Basel III Rules are deemed to have been adopted and gone into effect after the date hereof), or any change therein, or any change in Lawthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) or any L/C Issuer (or its Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related with respect to any Loan, Reimbursement Obligation, or its obligation to advance or maintain LIBORTerm SOFR Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its EURIBOR Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations thereinNotes, or its obligation to make LIBORTerm SOFR Loans or EURIBOR Loans;
(ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any LIBOR Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Lender (or its Lending Office) or any L/C Issuer (or its Lending Office) or shall impose on any Lender (or its Lending Office) or any L/C Issuer (or its Lending Office) or on the interbank market any other condition affecting its LIBORTerm SOFR Loans, issue Letters its Notes, its EURIBOR Loans, its CAD CDOR Loans, its Letter(s) of Credit, or acquire participations therein its participation in any thereof, any Reimbursement Obligation owed to it, or its obligation to make LIBORTerm SOFR Loans, EURIBOR Loans or CAD CDOR Loans, or to issue a Letter of Credit, or to participate therein; or
(iii) shall subject any Lender (or its Lending Office) or any L/C Issuer (or its Lending Office) to any Taxes (other than, in each case, than (A) Indemnified Taxes, (B) Taxes described in clauses (b) or through (cd) 84 of the definition of “Excluded Taxes” Taxes and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or on its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations Obligation owed to it, or on its participations in any thereofobligation to make Loans, or to issue a Letter of Credit, or to participate therein, or its obligation to advance deposits, reserves, other liabilities or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation thereincapital attributable thereto; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) or such L/C Issuer (or its Lending Office) of making, converting to, continuing making or maintaining any LIBORTerm SOFR Loan, EURIBOR Loan or to increase CAD CDOR Loans (or in the cost to such Lender or such Issuing Bank case of participating inTaxes, any Loan), issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any a Letter of Credit), or participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) or such L/C Issuer (whether of principal, interest or any other amountits Lending Office) in connection therewith under this Agreement or its Noteunder any other Loan Document with respect thereto, by an amount deemed by such Lender or Issuing Bank L/C Issuer to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank L/C Issuer (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company U.S. Borrower shall be obligated pay or cause the relevant Loan Party to pay to such Lender or Issuing Bank L/C Issuer such additional amount or amounts as will compensate such Lender or Issuing Bank L/C Issuer for such increased cost or reduction.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines ; provided that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of amounts shall be no greater than amounts that such Lender or such Lender’s L/C Issuer is generally charging other borrowers or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect account parties similarly situated to and of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy similar creditworthiness to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of CreditBorrowers.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (J M SMUCKER Co)
Increased Cost and Reduced Return. (a) IfIf on or after the Effective Date, a in the case of any Committed Loan or L/C Credit Extension or any obligation to make or participate in Committed Loans or L/C Credit Extensions, any Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):Law shall:
(i) subjects impose on any Lender Bank Party any other condition, cost or Issuing expense affecting this Agreement or Fixed Rate Loans made by such Bank Party or participation therein; or
(or its applicable Lending Officeii) subject any Recipient to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein Taxes (other than, in each case, than (A) Indemnified Taxes, Taxes and (B) Taxes described in clauses (b) or (c) and (d) of the definition of “Excluded Taxes” Taxes and (C) Other Connection Income Taxes on gross or net income, profits or revenue (including value-added or similar Taxes)) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(iiiii) imposesimpose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank Party (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank Party (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue Letters of Credit make or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of L/C Credit or participation thereinExtensions; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank Party (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of L/C Credit Extension (or of maintaining its obligation to participate in or to issue any Letter of Creditparticipation therein), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank Party (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank Party to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after following the Borrower’s receipt of a the certificate from referenced in clause (c) by such Lender Bank Party or Issuing Bank such other Recipient (with a copy to the Administrative Agent), (i) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall be obligated to pay to such Lender or Issuing Bank Party such additional amount or amounts as will compensate such Lender Bank Party or Issuing Bank such other Recipient for such increased cost or reductionreduction suffered (including any amount or amounts equal to any taxes on the overall net income of such Bank Party or such other Recipient payable by such Bank Party or such other Recipient with respect to the amount of payments required to be made pursuant to this Section 8.03(a)) as reasonably determined by such Bank Party (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and only if such additional amount or amounts are passed on in a similar manner by such Bank Party to similarly situated borrowers (which are parties to credit or loan documentation containing a provision similar to this Section 8.03(a), as determined by such Bank Party in its reasonable discretion, or (ii) convert such Bank Party’s Loans so affected by such Change in Law to Base Rate Loans and pay any related breakage costs pursuant to Section 2.14 and any accrued increased costs pursuant to this Section 8.03).
(b) IfIf a Bank Party, after the date hereofother than a Defaulting Bank, any Agent, any Lender or any Issuing Bank reasonably determines that a any Change in Law affecting such AgentLaw, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would will have the effect of reducing increasing the rate amount of return on such Lender’s, Issuing Bank’s capital or liquidity required or expected to be maintained by such Bank Party based on the capital existence of such Lender’sBank Party’s Commitment hereunder or its obligations hereunder, Issuing Bankit will notify the Borrower. This determination will be made on a Bank Party-by-Bank Party basis. The Borrower shall (i) within 15 days following the Borrower’s holding company, if any, receipt of the certificate referenced in clause (c) pay to each Bank Party on demand such additional amounts as are necessary to compensate for the increased cost to such Bank Party as a consequence result of this Agreement, the Commitments of any Change in Law or (ii) convert such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued Bank Party’s Loans so affected by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies to a Base Rate Loan and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pay any related breakage costs pursuant to Section 9.3(c2.14 and any accrued increased costs pursuant to this Section 8.03. In determining such amount, such Bank Party will act reasonably and in good faith (and not on an arbitrary or capricious basis) below setting forth and will use averaging and attribution methods which are reasonable, and such Bank Party will pass such costs on to the Borrower only if such costs are passed on in a similar manner by such Bank Party to similarly situated borrowers (which are parties to credit or loan documentation containing a provision similar to this Section 8.03(b)), as determined by such Bank Party in its reasonable detail such discretion. Each Bank Party’s determination and of compensation shall be conclusive if made in accordance with this provision. Each Bank Party, upon determining that any increased costs will be payable pursuant to this Section 8.03(b), will give prompt written notice thereof to the Borrower, which notice shall show the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans calculation of such Lender increased costs, although the failure to give any such notice shall not release or obtain diminish any of the cancellation of all such Letters of CreditBorrower’s obligations to pay increased costs pursuant to this Section 8.03(b).
(c) Each of Bank Party will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank Party to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithParty, be otherwise disadvantageous to it; provided that such Bank Party. The Borrower hereby agrees to pay the foregoing shall not reasonable costs and expenses incurred by such Bank Party in connection with any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such designation. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank Party claiming compensation under this Section 9.3, and shall furnish a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agenthereunder, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof which shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank Party may use any reasonable averaging and attribution methods.
(d) Failure or delay on the part of any Bank Party to demand compensation pursuant to this Section 8.03 shall not constitute a waiver of such Bank Party’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Bank Party pursuant to this Section 8.03 for any increased costs or reductions incurred more than six months prior to the date that such Bank Party notifies the Borrower and the Administrative Agent of the Change in Law giving rise to such increased costs or reductions and of such Bank Party’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions are retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in Lawthe official interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Officelending office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(ia) subjects shall subject any Lender or Issuing Bank (or its applicable Lending Officelending office) to any Taxcharges of any kind (other than Withholding Taxes covered by Section 4.9 hereof) with respect to its interest in the LIBOR Portions, duty or other charge related to any Loan, Reimbursement Obligation, its Note or its obligation to advance or maintain Loans or issue any Letter of Creditmake LIBOR Portions available, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Officelending office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, LIBOR Portions or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, LIBOR Portions or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses LIBOR Portions; or
(b) shall impose, modify or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement requirements (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Officelending office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Officelending office) or on the offshore interbank market any other condition affecting LIBOR Portions, its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation thereinmake LIBOR Portions available; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Officelending office) of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit)LIBOR Portion, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Officelending office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty fifteen (3015) days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, 3.10 and setting forth the additional amount or amounts in reasonable detail (including an explanation of the basis therefor and the computation of such amount) to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereofdeemed PRIMA FACIE correct. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. A Bank shall not be entitled to compensation under this Section 3.10 with respect to any adoption or change for any period prior to the earlier of (i) the date it notifies the Company of the adoption or change giving rise to the request for compensation or (ii) the date which is thirty (30) days prior to the date it becomes aware of the adoption or change giving rise to the request for compensation if the Company is notified of the adoption or change prior to the lapse of such 30-day period.
Appears in 1 contract
Increased Cost and Reduced Return. (a) If, a Change on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change in Lawany applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank Party (or its applicable Lending Officeother than the Agents) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency, after the date such Agentshall impose, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge assessment or similar requirement (including, without limitation, including any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem but excluding (i) with respect to any Euro-Dollar Loan, any such requirement included in an applicable Euro-Dollar Reserve Percentage and (ii) with respect to any CD Loan, any such requirement included in an applicable Domestic Reserve Percentage) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank Party (or its applicable Lending Officeother than the Agents) or imposes shall impose on any Lender or Issuing Bank Party (or its Lending Officeother than the Agents) or on the London interbank market or the United States market for certificates of deposit any other condition affecting its SOFR Fixed Rate Loans, Letters of Creditits Note, any Reimbursement Obligations owed its obligation to it, make Fixed Rate Loans or its participations in any thereofSwingline Loans, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; Credit, and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) Party of making, converting to, continuing making or maintaining its Fixed Rate Loans or participating in any Loan, Letter of Credit or to increase the cost to such Lender or such Issuing the Swingline Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), the Swingline Commitment or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith Party under this Agreement or under its NoteNote with respect thereto, by an 117 amount deemed by such Lender or Issuing Bank Party to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank Party (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank Party such additional amount or amounts as will compensate such Lender or Issuing Bank Party for such increased cost or reduction; provided that the Borrower shall not be liable to any Lender Party in respect of any such increased cost or reduction with respect to any period of time more than three months before the Borrower receives the notice required by the first sentence of Section 11.03(c) or more than six months before the Borrower receives the relevant certificate referred to in the second sentence of Section 11.03(c).
(b) IfIf any Lender Party (other than the Agents) shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender Party (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, Party's obligations hereunder to a level below that which such Lender Party (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank Party to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank Party (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank Party such additional amount or amounts as will compensate such Lender or Issuing Bank it for such reduction; provided that the Borrower shall not be liable to any Lender Party in respect of any such reduction suffered or with respect to any period of time more than three months prior to the Company may prepay all SOFR Loans date of such Lender or obtain the cancellation notice required by the first sentence of all such Letters of CreditSection 11.03(c).
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank Party (other than the Administrative Agent, Agents) will promptly notify the Borrower and the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event of which it has knowledge, occurring after the Company shall have no any obligation date hereof, which will entitle it to pay any amount with respect compensation pursuant to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office or LC Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithParty, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any such Lender or any Issuing Bank, as applicable, Party claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agenthereunder, such Lender or such Issuing Bank, as applicable, describing showing the calculation thereof in reasonable detail the calculations thereof detail, shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank Party may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Vencor Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or Letters of Credit or any obligation to make Committed Loans or issue or participate in any Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or any Issuing Bank with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit (including letters of credit and participations therein) extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes any Issuing Bank or shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or any Issuing Bank or on the London interbank market any other condition affecting its SOFR Loans, Fixed Rate Loans or the Letters of Credit, any Reimbursement Obligations owed to itits Note, or its participations in any thereof, or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing making or maintaining any Letter of Credit (Fixed Rate Loan or of maintaining its obligation to participate issuing or participating in or to issue any Letter Letters of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith such Issuing Bank under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender Bank or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender Bank or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated to pay to such Lender Bank or Issuing Bank such additional amount or amounts as will compensate such Lender Bank or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Bank will promptly notify the Agents, the Lenders Company and the Issuing Banks that determines Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Notwithstanding the foregoing subsections (a) and (b) of this Section 8.03, the Company shall only be obligated to compensate any Bank for any amount arising or accruing during (i) any time or period commencing not more than 90 days prior to the date on which such Bank notifies the Agent and the Company that it proposes to demand such compensation and identifies to the Agent and the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (ii) any time or period during which, because of the retroactive application of such statute, regulation or other such basis, such Bank did not know that such amount would arise or accrue.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Euro-Dollar Loan or Letter of Credit or any obligation to make Committed Euro-Dollar Loans or issue or participate in Letters of Credit or (y) the date of the related Competitive Bid Quote, in the case of any Competitive Bid Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if latercentral bank or comparable agency shall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, compulsory loan, special deposit, compulsory loan, insurance charge assessment or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board, but excluding with respect to any Euro-Dollar Loan any such requirement with respect to which such Bank is entitled to compensation during the relevant Interest Period under Section 2.16) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxesTaxes) affecting this Agreement its Fixed Rate Loans or the Letters of Credit, its Note evidencing Fixed Rate Loans made by such Lender or Issuing Bank its obligation to make Fixed Rate Loans or any Letter its obligations hereunder in respect to Letters of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, continuing, converting to, continuing to or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 30 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Servicing Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction; provided that the Borrower shall not be required to compensate a Bank pursuant to this Section 8.03(a) for any increased costs or reductions incurred more than 180 days prior to the date that such Bank notifies the Borrower and the Servicing Agent of the event described in this Section 8.03(a) that gives rise to such increased cost or reduction and of such Bank’s intention to claim compensation therefor, and provided further that if the event giving rise to such increased cost or reduction is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(b) IfIf any Bank shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy or liquidity requirements, or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 30 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Servicing Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or reduction; provided that the Company may prepay all SOFR Loans of Borrower shall not be required to compensate a Bank pursuant to this Section 8.03(b) for any reductions incurred more than 180 days prior to the date that such Lender or obtain Bank so notifies the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Servicing Agent of the circumstances event described in this Section 8.03(b) that entitle such Agent, such Lender or such Issuing Bank gives rise to such reduction and of such Bank’s intention to claim compensation no later than ninety (90) days after such Agenttherefor, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of and provided further that if the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis increased cost or circumstances in respect of this Section 9.3 giving rise to such compensation reduction is retroactive, then such 90the 180-day period referred to in this sentence above shall be extended to include the period with of retroactive effect thereof. .
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks shall use reasonable efforts Servicing Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and will designate a different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) For the avoidance of doubt, this Section 8.03 shall apply to all rules, guidelines or directives concerning capital adequacy issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States financial regulatory authorities, in each case pursuant to Basel III, regardless of the date adopted, issued, promulgated or implemented.
Appears in 1 contract
Samples: Credit Agreement (Clorox Co /De/)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or Letter of Credit or any obligation to make Committed Loans or issue or participate in any Letter of Credit or (y) the date of any related Competitive Bid Quote, in the case of any Competitive Bid Loan (in each case described in (x) and (y), the "Applicable Date"), the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loansby any such authority, Letters of Creditcentral bank or comparable agency shall impose, Reimbursement Obligations modify or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (i) with respect to any CD Loan any such requirement included in an applicable Domestic Reserve Percentage and (ii) with respect to any Euro-Currency Loan any such requirement included in an applicable Euro-Currency Reserve Percentage), special deposit, insurance assessment (excluding, with respect to any CD Loan, any such requirement reflected in an applicable Assessment Rate) or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall be obligated pay, or shall cause another Borrower to pay to pay, such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that, after the date hereofApplicable Date, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to Lender will promptly notify the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, and the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that Applicable Date, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole reasonable judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, shall be delivered to the Company and the Administrative Agent setting forth the additional amount or amounts to be paid to it hereunder and which certificate, accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing computation thereof in reasonable detail the calculations thereof detail, shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods. Notwithstanding subsection (a) of this Section, the Company shall only be obligated to compensate any Lender for any amount arising or accruing during (i) any time or period commencing not more than 90 days prior to the date on which such Lender notifies the Administrative Agent and the Company that it proposes to demand such compensation and identifies to the Administrative Agent and the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (ii) any time or period during which, because of the retroactive application of such statute, regulation or other such basis, such Lender did not know that such amount would arise or accrue.
(d) Section 8.03 does not apply to the extent any Increased Cost is:
(i) attributable to any taxes, whether or not such taxes are excluded from the definition of "Taxes" for the purpose of Section 8.04;
(ii) compensated for by the payment of the Mandatory Cost; or
(iii) attributable to the willful breach by the relevant Lender or its affiliates of any law or regulation.
(e) If the cost to any Lender of making or maintaining any Loan to or of issuing or maintaining any Letter of Credit for the account of an Eligible Subsidiary (other than Praxair Canada Inc. and XXXX) is increased, or the amount of any sum received or receivable by any Lender (or its Applicable Lending Office) is reduced by an amount deemed by such Lender to be material, by reason of the fact that an Eligible Subsidiary (other than Praxair Canada Inc. and XXXX) is incorporated in, or conducts business in, a jurisdiction outside the United States, the legal basis therefor shall be deemed to come into effect initially on the date such Person becomes an Eligible Subsidiary hereunder (i.e., to constitute a change in law subsequent to the Applicable Date for purposes of this Section 8.03).
Appears in 1 contract
Samples: Credit Agreement (Praxair Inc)
Increased Cost and Reduced Return. (a) If, a Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) ), with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such the Administrative Agent, such Issuing Bank, or such Lender becomes an the Administrative Agent, an Issuing Bank Bank, or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Taxtax, duty or other charge related to any Eurocurrency Loan, Reimbursement Obligation, or its obligation to advance or maintain Eurocurrency Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Eurocurrency Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Eurocurrency Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Eurocurrency Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) except for changes with respect to taxes that are not Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxespursuant to Section 3.3);; or
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding for any Eurocurrency Loan any such requirement included in an applicable Statutory Reserve Rate) against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Eurocurrency Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations participation in any thereof, or its obligation to advance or maintain SOFR Eurocurrency Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing advancing or maintaining any Eurocurrency Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any a Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit)participating therein, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c8.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall be obligated to pay (or cause the applicable Designated Borrower to pay) to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) If, after the date hereof, any the Administrative Agent, any Lender, the Swingline Lender or any Issuing Bank shall have reasonably determines determined that a Change in Law affecting such regarding capital adequacy or liquidity (including, without limitation, any revision in the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 00 XXX Xxxx 000, Xxxxxxxx X) or of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A), or in any other applicable capital adequacy or liquidity rules heretofore adopted and issued by any governmental authority), or any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Administrative Agent, any Lender, the Swingline Lender or Issuing Bank (or [Senior Secured Revolving Credit Agreement] its applicable Lending Office) with any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or Swingline Lender’s capital, or on the capital of any corporation controlling such Lender’s, Issuing Bank’s holding company, if anyBank or Swingline Lender, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, its obligations hereunder to a level below that which such Lender or Lender, Issuing Bank or such Lender’s or Issuing Bank’s holding company Swingline Lender could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or ’s, Issuing Bank’s policies and the policies of such ’s, Swingline Lender’s or Issuing Bankits controlling corporation’s holding companypolicies with respect to capital adequacy or liquidity in effect immediately before such adoption, change or compliance) by an amount reasonably deemed by such Lender or Lender, Issuing Bank or Swingline Lender to be material, then, subject to Section 9.3(c8.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Lender, Issuing Bank or Swingline Lender (with a copy to the Administrative Agent) pursuant to Section 9.3(csubsection (c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay (or cause the applicable Designated Borrower to pay) to such Lender or Lender, Issuing Bank or Swingline Lender such additional amount or amounts as will compensate such Lender or Lender, Issuing Bank or Swingline Lender for such reduction suffered or the Company applicable Borrower may prepay all SOFR Eurocurrency Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the AgentsAdministrative Agent, the Lenders Lenders, the Swingline Lender and the Issuing Banks that determines to seek compensation or additional interest under this Section 9.3 8.3 or Section 2.15 shall give written notice to the Company and, in the case of a Lender, the Swingline Lender or an a Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such the Administrative Agent, such Lender, the Swingline Lender or such Issuing Bank to such compensation no later than ninety (90) days after such the Administrative Agent, such Lender, the Swingline Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company no Borrower shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, that if the basis or circumstances in respect of this Section 9.3 2.15 or Section 8.3 giving rise to such compensation or additional interest is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the AgentsAdministrative Agent, the Lenders Lenders, the Swingline Lender and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, additional interest, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such the Administrative Agent, such Lender, the Swingline Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender, the Swingline Lender or any Issuing Bank or the obligations of the Company Borrowers under this Section 9.38.3 or Section 2.15. A certificate of any the Administrative Agent, any Lender, the Swingline Lender or any Issuing Bank, as applicable, claiming compensation or additional interest under this Section 9.38.3 or Section 2.15, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such the Administrative Agent, such Lender, Swingline Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender, the Swingline Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Revolving Credit Agreement (Noble Corp / Switzerland)
Increased Cost and Reduced Return. (a) If, a Change after (x) the date hereof, in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency, including the NAIC, charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable 106 Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after such authority, central bank or comparable agency, including the date hereof (orNAIC, if latershall impose, after the date such Agent, such Issuing Bank, modify or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System (but excluding with respect to any Euro-Dollar Loan any such requirement reflected in an applicable Euro-Dollar Reserve Percentage)), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Euro-Dollar Loans or Money Market LIBOR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereofNote, or its obligation to advance or maintain SOFR make Euro-Dollar Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing fore going is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Euro-Dollar Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth ), which demand shall be accompanied by a certificate showing, in reasonable detail such determination and the basis thereofreason able detail, the Company calculation of such amount or amounts, the Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank on an after-tax basis for such increased cost or reduction.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Meditrust Corp)
Increased Cost and Reduced Return. (a) IfBy way of clarification, a Change and not of limitation, of Section 6.1, if the adoption after the date hereof of any applicable law, rule or regulation, or any change therein after the date hereof, or any change after the date hereof in Lawthe interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any AgentWindmill Funding Source, the Agent or any Lender or Issuing Bank Purchaser (or its applicable Lending Officecollectively, the "Funding Parties") with any request or directive issued after the date hereof (whether or not having the force of law) of any such Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
"Regulatory Change") (ia) subjects any Lender or Issuing Bank (or its applicable Lending Office) Funding Party to any Taxcharge or withholding on or in connection with a Funding Agreement or this Agreement (collectively, duty the "Funding Documents") or other charge related to any LoanReceivable, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change (b) changes the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal Funding Parties of or interest any amounts payable under any of the Funding Documents (except for changes in the rate of Tax on its Loans, Letters the overall net income of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casesuch Funding Party), (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties, (d) has the effect of reducing the rate of return on such Funding Party's capital to a level below that which such Funding Party could have achieved but for such adoption, change or Issuing Bank compliance (or its applicable Lending Officetaking into consideration such Funding Party's policies concerning capital adequacy) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iiie) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is (x) to impose a cost on, or increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Funding Party of participating in, issuing or maintaining its commitment under any Letter of Credit (Funding Document or of purchasing, maintaining its obligation to participate in or to issue funding any Letter of Credit)interest acquired under any Funding Document, or (y) to reduce the amount of any sum received or receivable by, or to reduce the rate of return of, any Funding Party under any Funding Document or (z) to require any payment calculated by such Lender reference to the amount of interests held or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit hereunder, then, subject to Section 9.3(c)upon demand by the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy the Seller shall pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and Agent for the basis thereof, account of the Company shall be obligated to pay to such Lender or Issuing Bank Person such additional amount or amounts as will compensate the Agent or such Lender or Issuing Bank Purchaser (or, in the case of Windmill, will enable Windmill to compensate any Windmill Funding Source) for such increased cost or reduction.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Receivables Sale Agreement (World Color Press Inc /De/)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, in the case of any Committed Loan (other than a Committed Base Rate Loan) or Letter of Credit or any obligation to make such Committed Loans or issue or participate in any Letter of Credit (each an “Affected Committed Credits or Obligation”) or (y) the date of the related Money Market Quote, in the case of any Money Market Loan (each an “Affected Money Market Credit or Obligation” and, together with each Affected Committed Credit or Obligation, an “Affected Credit or Obligation”), any Change in Law, or compliance by any Agent, :
(i) shall subject any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects any Lender or Issuing Bank (or its applicable Lending Officelending office) to any Tax, duty or other charge related Non-Excluded Tax with respect to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Affected Loans or issue any Letter of CreditObligations, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Officelending office) of the principal of or interest on in respect of its Loans, Letters of Credit Affected Loans or Reimbursement Obligation or any participations in any thereof, Obligations or any other amounts due under this Agreement related to in respect of its Loans, Letters Affected Loans or Obligations (except for changes in the rate of Credit, Reimbursement Obligations or participations therein, tax on the overall net income of such Lender or its obligation to make Loans, issue Letters of Credit, applicable lending office imposed by the jurisdiction in which such Lender’s principal executive office or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxesapplicable lending office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Federal Reserve Board) , but excluding with respect to any Eurocurrency Loan, any such requirement included in an applicable Eurocurrency Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Lending Officelending office) or imposes shall impose on any Lender or Issuing Bank (or its Lending Officeapplicable lending office) or on the London interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, Affected Loans or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation thereinObligations; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Lending Officelending office) of making, converting to, continuing making or maintaining any LoanAffected Loan or Obligation, or to increase the cost to such Lender or such Issuing Bank of issuing, participating in, issuing in or maintaining any Letter of Credit (Affected Loan or of maintaining its obligation to participate in or to issue any Letter of Credit)Obligation, or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Officelending office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or in respect of its Noteportion of the Obligations with respect thereto, by an amount deemed then, within 15 days after demand by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrowers shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reductionreduction (without duplication of any amounts payable by the Borrowers under Section 8.6).
(b) If, If any Lender shall have determined that any Change in Law made or issued on or after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, this Agreement regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent Company) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, ’s obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent Company) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank with respect to be material, then, subject to Section 9.3(ccapital adequacy), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrowers shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent Company) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Lender will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different applicable lending office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth a calculation in reasonable detail of the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereofconclusive and binding absent manifest error if prepared in good faith and on a reasonable basis. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (MEADWESTVACO Corp)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the Effective Date, a Change in Lawthe case of any Syndicated Loan, any Swingline Loan, any Letter of Credit or participation interest therein or any Commitment or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects shall subject any Lender or Issuing Bank (or its applicable Applicable Lending Officeoffice) to any Taxtax, duty or other charge related with respect to its Fixed Rate Loans, its Note or its obligation to make Euro-Dollar Loans or any Loan, Reimbursement ObligationLetter of Credit issued by it or any participating interest in a Letter of Credit held by it, or its obligation to advance issue Letters of Credit or maintain Loans or issue any Letter of Creditto acquire participating interests therein (collectively, its "Covered Credits"), or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Euro-Dollar Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters Covered Credits (except for changes in the rate of Credit, Reimbursement Obligations or participations therein, tax on the overall net income of such Bank or its obligation to make Loans, issue Letters of Credit, Applicable Lending Office imposed by the jurisdiction in which such Bank's principal executive office or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income TaxesApplicable Lending Office is located);; or
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for the London interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation thereinCovered Credits; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Covered Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Bank shall have determined that, after the date hereofEffective Date, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender Bank (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender Bank (or Issuing Bank its Parent) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each of Bank will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines Agent of any event of which it has knowledge, occurring after the Effective Date, which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Bank. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Shopko Stores Inc)
Increased Cost and Reduced Return. (a) IfIf on or after (x) the date hereof, a Change in Lawthe case of any Committed Loan or any obligation to make Committed Loans or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(iA) subjects shall subject any Lender or Issuing Bank (or its applicable Applicable Lending Office) to any Taxtax, duty or other charge related with respect to any Loanits Fixed Rate Loans, Reimbursement Obligation, its Note or its obligation to advance or maintain make Fixed Rate Loans or issue any Letter its obligations hereunder in respect of Letters of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Fixed Rate Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, Fixed Rate Loans or its obligation to make Loans, issue Fixed Rate Loans or its obligations hereunder in respect of Letters of CreditCredit (except for taxes based on or measured in whole or in part by the gross income, net income, gross revenue or acquire participations therein (other than, gross receipts of such Lender or its Applicable Lending Office imposed by the jurisdiction in each case, (A) Indemnified Taxes, which such Lender's principal executive office or Applicable Lending Office is located); or
(B) Taxes described in clauses (b) shall impose, modify or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding (y) with respect to any Euro-Dollar Loan any such requirement with respect to which such Lender is entitled to compensation during the relevant Interest Period under Section 8.03(d) and (z) any such requirement with respect to which such Lender is entitled to compensation pursuant to Section 8.03(b)), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect of Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation thereinCredit; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Fixed Rate Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) IfIf any Lender shall have determined that, after the date hereof, the adoption of any Agentapplicable law, any Lender rule or regulation regarding capital adequacy, or any Issuing Bank reasonably determines that a Change change in Law affecting any such Agentlaw, Lender rule or Issuing Bank regulation, or [Senior Secured Revolving Credit Agreement] any lending office of such Lender change in the interpretation or such Lender’s administration thereof by any governmental authority, central bank or Issuing Bank’s holding companycomparable agency charged with the interpretation or administration thereof, if any, or any request or directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction, provided that the Borrower shall not be obligated to compensate any Lender (or its Parent) in respect of any such reduction suffered in respect of periods more than six months prior to the date on which such Lender shall have notified the Borrower of its intention to demand such compensation and setting forth the amount or the Company may prepay all SOFR Loans specific basis of such Lender or obtain the cancellation of all such Letters of Creditcomputation thereof.
(c) Each of Lender will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, Lender to compensation pursuant to Section 8.03(a) or (b) and will designate a different Applicable Lending Office if such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
(d) The Borrower shall pay for the account of each Lender on the last day of each Interest Period with respect to any Euro-Dollar Loan (and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof), if at any time during such Interest Period such Lender shall be required to maintain (and shall maintain in amounts deemed by such Lender to be material) reserves against any category of liabilities which includes deposits by reference to which the interest rate on Euro-Dollar Loans is determined as provided in this Agreement or against any category of extensions of credit or other assets of such Lender which includes loans by a non-United States office of such Lender to United States residents (including without limitation reserves against "Eurocurrency liabilities" under Regulation D), an additional amount (determined by such Lender and notified to the Borrower and the Administrative Agent) equal to the product of the following for each day during such Interest Period:
(i) the principal amount of the Euro-Dollar Loan of such Lender to which such Interest Period relates outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the applicable London Interbank Offered Rate (expressed as a decimal) and the denominator of which is one minus the stated rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender on such day minus (y) such numerator; and
Appears in 1 contract
Samples: Credit Agreement (Usx Corp)
Increased Cost and Reduced Return. (a) IfBy way of clarification, a Change and not of limitation, of Section 6.1, if the adoption of any applicable law, rule, regulation or accounting principle, or any change therein, or any change in Lawthe interpretation or administration thereof by any Governmental Authority or Accounting Authority charged with the interpretation or administration thereof, or compliance by any Funding Source, the Agent, any Lender Purchaser Agent or Issuing Bank any Purchaser (or its applicable Lending Officecollectively, the "Funding Parties") with any request or directive (whether or not having the force of law) of any such Governmental Authority issued after the date hereof or Accounting Authority (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
"Regulatory Change") (ia) subjects any Lender or Issuing Bank (or its applicable Lending Office) Funding Party to any Taxcharge or withholding on or in connection with a Funding Agreement or this Agreement (collectively, duty the "Funding Documents") or other charge related to any LoanReceivable, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change (b) changes the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal Funding Parties of or interest any amounts payable under any of the Funding Documents (except for changes in the rate of Tax on its Loans, Letters the overall net income of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casesuch Funding Party), (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties, (d) has the effect of reducing the rate of return on such Funding Party's capital to a level below that which such Funding Party could have achieved but for such adoption, change or Issuing Bank compliance (or its applicable Lending Officetaking into consideration such Funding Party's policies concerning capital adequacy) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iiie) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is (x) to impose a cost on, or increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Funding Party of participating in, issuing or maintaining its commitment under any Letter of Credit (Funding Document or of purchasing, maintaining its obligation to participate in or to issue funding any Letter of Credit)interest acquired under any Funding Document, or (y) to reduce the amount of any sum received or receivable by, or to reduce the rate of return of, any Funding Party under any Funding Document or (z) to require any payment calculated by such Lender reference to the amount of interests held or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit hereunder, then, subject upon demand by the Agent or the applicable Purchaser Agent, the Seller shall pay to Section 9.3(c)the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy respect to amounts owed to it) or the Administrative Agentapplicable Purchaser Agent (with respect to amounts owed to it or any Purchaser in its Purchaser Group) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and for the basis thereof, account of the Company shall be obligated to pay to such Lender or Issuing Bank Person such additional amount or amounts as will compensate the Agent, such Lender Purchaser Agent or Issuing Bank such Purchaser (or, in the case of any Conduit Purchaser, will enable such Conduit Purchaser to compensate any Funding Source) for such increased cost or reduction.
(b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines . Each Funding Party agrees that a Change in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another any event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount operation of this Section 6.2 with respect to claims accruing prior to the ninetieth day preceding such written demand; provided thatFunding Party, it will, if requested by the basis Seller, use reasonable efforts (subject to overall policy considerations of such Funding Party) to designate another office for any credit accommodation affected by such event, provided that such designation is made on such terms that such Funding Party and its office suffer no economic, legal or circumstances in respect regulatory disadvantage, with the object of this Section 9.3 avoiding the consequence of the event giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment operation of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methodsSection.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIn the event that the adoption of any applicable law, a Change rule or regulation, or any change therein or in Lawthe interpretation or application thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Agentthe Lessor, any Equity Participant or any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive after the date hereof (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, does or shall change the basis of taxation of payments to any Lender impose, modify or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems hold applicable any reserve, special deposit, insurance assessment, compulsory loan, insurance charge loan or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets ofheld by, or deposits with or other liabilities in or for the account of, advances or loans by, or other credit extended or participated in by, or any other acquisition of funds by, the Lessor, any office of any Equity Participant or any Lender which are not otherwise included in determination of calculation of Base Rent hereunder or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereofcovered by SECTION 32.4; or
(iiiii) imposes does or shall impose on the Lessor, any Equity Participant or any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such any Equity Participant or any Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing making or maintaining any LoanFundings, contributions under the Trust Agreement or to increase Loans, in each case based on the cost to such Lender or such Issuing Bank of participating inEurodollar Rate, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit)as the case may be, or to reduce the any amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Lending Office) (whether of principalhereunder in respect thereof, interest or any other amount) in connection therewith under this Agreement or its Note, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty fifteen (3015) days after receipt of a certificate from such Lender demand by any Equity Participant or Issuing Bank (with a copy any Lender, the Lessee shall pay to the Administrative Agent) pursuant Lessor, as Supplemental Rent, any additional amounts necessary to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank affected Person for such increased cost or reductionreduced amount receivable.
(b) IfIf any Equity Participant or any Lender shall have determined that the adoption after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change therein after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that a Change change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, Lender central bank or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive issued after the date hereof regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of any Equity Participant or any Lender (or any entity directly or -45- indirectly controlling any of such Lender’s, Issuing Bank’s holding company, if any, Persons) as a consequence of this Agreement, their respective obligations under the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, Operative Documents to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company they could have achieved but for such Change in Law adoption, change, request or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank with respect to be material, then, subject to Section 9.3(ccapital adequacy), then from time to time, within thirty fifteen (3015) days after its receipt of a certificate from such Lender demand by any Equity Participant or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereofany Lender, the Company Lessee shall pay to such Lender or Issuing Bank the Lessor, as Supplemental Rent, such additional amount or amounts as will compensate such Lender the Equity Participants and the Lenders (or Issuing Bank their respective controlling entities) for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each The Lessor, any Equity Participant and any Lender will notify the Lessee of any event occurring after the Agents, the Lenders date of this Lease which will entitle such entity to compensation pursuant to SECTION 32.5(a) OR (b) (an "ADDITIONAL COST EVENT") as promptly as practicable after it obtains knowledge thereof and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to request such compensation, and (if so requested by the Company andLessee) will designate a different office for its Fundings, in equity contributions or Loans, as the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided thatmay be, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation would avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment opinion of such Agentthe Lessor, such Lender Equity Participant or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided PROVIDED that the foregoing Lessee shall not in be obligated to compensate the Lessor, such Equity Participant or such Lender for any way affect such additional costs incurred more than 180 days prior to the rights time the Lessor, such Equity Participant or such Lender first notifies the Lessee of such Additional Cost Event. A statement of the Lessor, any Equity Participant or any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3SECTION 32.5 (a) OR (b), and setting forth the additional amount or amounts to be paid to it hereunder calculations and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any basis therefor (using reasonable averaging and attribution methods), in each case in reasonable detail, shall be conclusive absent manifest error.
(d) If any Equity Participant or Lender requests compensation from the Lessee under SECTION 32.4 or SECTION 32.5, the Lessee may, by notice to the Lessor, require the Lessor to exercise any rights available to it under the Trust Agreement or the Credit Agreement to cause the yield on its equity contributions or the interest on the Loans, as the case may be, to be based upon the Alternate Base Rate from and after the last day of the current Interest period with respect thereto and until the Additional Cost Event giving rise to such request ceases to be in effect.
Appears in 1 contract
Samples: Master Lease and Security Agreement (Iron Mountain Inc/Pa)
Increased Cost and Reduced Return. (a) IfIf the adoption after the date hereof of any applicable law, a Change rule or regulation, or any change therein after the date hereof, or any change in Lawthe interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Funding Source, the Agent, any Lender Purchaser Agent or Issuing Bank any Purchaser (or its applicable Lending Officecollectively, the "FUNDING PARTIES") with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof of any such Governmental Authority (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):
"REGULATORY CHANGE") (ia) subjects any Lender or Issuing Bank (or its applicable Lending Office) Funding Party to any Taxcharge or withholding on or in connection with a Funding Agreement or this Agreement (collectively, duty the "FUNDING DOCUMENTS") or other charge related to any LoanReceivable, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change (b) changes the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal Funding Parties of or interest any amounts payable under any of the Funding Documents (except for changes in the rate of Tax on its Loans, Letters the overall net income of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each casesuch Funding Party), (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties, (d) has the effect of reducing the rate of return on such Funding Party's capital to a level below that which such Funding Party could have achieved but for such adoption, change or Issuing Bank compliance (or its applicable Lending Officetaking into consideration such Funding Party's policies concerning capital adequacy) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iiie) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is (x) to impose a cost on, or increase the cost to such Lender or Issuing Bank (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank Funding Party of participating in, issuing or maintaining its commitment under any Letter of Credit (Funding Document or of purchasing, maintaining its obligation to participate in or to issue funding any Letter of Credit)interest acquired under any Funding Document, or (y) to reduce the amount of any sum received or receivable by, or to reduce the rate of return of, any Funding Party under any Funding Document or (z) to require any payment calculated by such Lender reference to the amount of interests held or Issuing Bank (or its applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit hereunder, then, subject to Section 9.3(c)upon demand by the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy the Seller shall pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and Agent for the basis thereof, account of the Company shall be obligated to pay to such Lender or Issuing Bank Person such additional amount or amounts as will compensate the Agent or such Lender or Issuing Bank Purchaser (or, in the case of a Conduit Purchaser, will enable such Conduit Purchaser to compensate any Funding Source) for such increased cost or reduction.
. Without limiting the foregoing, the Seller acknowledges and agrees that the fees and other amounts payable by the Seller to the Purchasers, the Purchaser Agents, and the Agent have been negotiated on the basis that the unused portion of each Committed Purchaser's Commitment is treated as a "SHORT TERM COMMITMENT" for which there is no regulatory capital requirement and the Commitment of each Enhancement Bank carries the same capital requirement as a funded loan in the same amount. If any Committed Purchaser determines it is required to maintain capital against its Unused Commitment, or if any Enhancement Bank is required to maintain capital on its Unused Commitment (b) If, after the date hereof, any Agent, any Lender or any Issuing Bank reasonably determines that Purchaser is required to maintain capital against its Investment) in excess of the amount of capital it would be required to maintain against a Change funded loan in Law affecting such Agent, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held bysame amount, such Lender, or the Letters of Credit issued by any Issuing Bank, Purchaser shall be entitled to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods6.2.
Appears in 1 contract
Samples: Receivables Sale Agreement (Quebecor World Usa Inc)
Increased Cost and Reduced Return. (a) If, a Change after the date hereof, the adoption of any applicable Law, rule, or regulation, or any change in any applicable Law, rule, or regulation, or any change in the interpretation or administration thereof by any Governmental Authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive adopted after the date hereof (whether or not having the force of lawLaw) of any such Governmental Authority issued after the date hereof (orAuthority, if later, after the date such Agent, such Issuing Bankcentral bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(i) subjects any Lender or Issuing shall subject such Bank (or its applicable Applicable Lending Office) to any Tax, duty duty, or other charge related with respect to any LoanEurodollar Advances, Reimbursement Obligationits Note, or its obligation to advance or maintain Loans or issue any Letter of Creditmake Eurodollar Advances, or shall change the basis of taxation of payments any amounts payable to any Lender or Issuing such Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters Note in respect of Credit, or acquire participations therein any Eurodollar Advances (other than, than Taxes imposed on the overall net income of such Bank by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) which such Bank has its principal office or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxessuch Applicable Lending Office);
(ii) imposesshall impose, modifies modify, or deems deem applicable any reserve, special deposit, compulsory loanassessment, insurance charge or similar requirement (including, without limitation, other than the Reserve Requirement utilized in the determination of the Adjusted Eurodollar Rate) relating to any such requirement imposed by the Federal Reserve Board) against extensions of credit or other assets of, or any deposits with or for the account other liabilities or commitments of, or credit extended or participated in by, any Lender or Issuing such Bank (or its applicable Applicable Lending Office), including the Commitment of such Bank hereunder; or
(iii) or imposes shall impose on any Lender or Issuing such Bank (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank its Note or any Letter of Credit such extensions of credit or participation thereinliabilities or commitments; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting toConverting into, continuing Continuing, or maintaining any Loan, or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), Eurodollar Advances or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or its NoteNote with respect to any Eurodollar Advances, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company then Borrower shall be obligated to pay to such Lender or Issuing Bank on demand such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction. If any Bank requests compensation by Borrower under this Section 5.1(a), Borrower may, by notice to -------------- such Bank (with a copy to Agent), suspend the obligation of such Bank to make or Continue Advances of the Type with respect to which such compensation is requested, or to Convert Advances of any other Type into Advances of such Type, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 5.4 shall be applicable); provided that ----------- -------- such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) If, after the date hereof, any AgentBank shall have determined that the adoption of any applicable Law, any Lender rule, or regulation regarding capital adequacy or any Issuing Bank reasonably determines that a Change change therein or in Law affecting such Agentthe interpretation or administration thereof by any Governmental Authority, Lender central bank, or Issuing Bank comparable agency charged with the interpretation or [Senior Secured Revolving Credit Agreement] administration thereof, or any lending office of such Lender request or such Lender’s or Issuing Bank’s holding company, if any, directive adopted after the date hereof regarding capital adequacy (whether or liquidity requirements not having the force of Law) of any such Governmental Authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Bank or any corporation controlling such Bank as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change, request, or directive (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank with respect to be material, then, subject to Section 9.3(ccapital adequacy), then from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company time upon demand Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each Bank shall promptly notify Borrower and Agent of any event of which it has knowledge, occurring after the Agentsdate hereof, the Lenders and the Issuing Banks that determines which will entitle such Bank to seek compensation under pursuant to this Section 9.3 shall give written notice to the Company and, in the case of 5.1 and will designate a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle different ----------- Applicable Lending Office if such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithBank, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing . Any Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, 5.1 shall furnish to Borrower and Agent a statement setting forth the ----------- additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof which shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Samples: Credit Agreement (Wiser Oil Co)
Increased Cost and Reduced Return. (a) IfIf the adoption of any applicable law, a Change rule or regulation, or any change therein, or any change in Lawthe interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any AgentWindmill Funding Source, any Lender the Agent or Issuing Bank Windmill (or its applicable Lending Officecollectively, the "Funding Parties") with any request or directive (whether or not having the force of law) of any such Governmental Authority issued after Authority, central bank or comparable agency (a "Regulatory Change"): (i) shall subject any of the date hereof (or, if later, after Funding Parties to any charge or withholding on or with respect to the date such Agent, such Issuing Bankapplicable Funding Agreement or the Assets or other property conveyed hereunder or funds advanced in connection therewith, or such Lender becomes an Agent, an Issuing Bank or a Lender):
(i) subjects Funding Party's obligations under any Lender or Issuing Bank (or its applicable Lending Office) to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its LoansFunding Agreements, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein (other than, in each case, (A) Indemnified Taxes, (B) Taxes described in clauses (b) or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposesshall impose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Federal Reserve Board) against assets of, deposits with or for the account of, or any credit extended or participated in by, any Lender of the Funding Parties or Issuing Bank (or its applicable Lending Office) or imposes on any Lender or Issuing Bank (or its Lending Office) or on the interbank market any other condition affecting its SOFR Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, or its obligation to advance or maintain SOFR Loans, issue Letters of Credit or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market shall impose any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to impose a cost on or increase the cost to such Lender any of the Funding Parties (A) of its commitment under any of the Funding Agreements, or Issuing Bank (B) of its purchasing, maintaining or funding of any of its property interests under any of the Funding Agreements, or (C) of the Assets or its applicable Lending Office) of makinginterest therein, converting to, continuing or maintaining any Loan, or to increase as the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit)case may be, or to reduce the amount of any sum received or receivable by such Lender any of the Funding Parties under any of the Funding Agreements or Issuing Bank (to require any payment calculated by reference to the amount of interests or its applicable Lending Office) (whether of principal, loans held or interest or any other amount) in connection therewith under this Agreement or its Note, amounts received by an amount deemed by such Lender or Issuing Bank to be materialit, then, subject to Section 9.3(c)upon demand by the Agent, from time to time, within thirty (30) days after receipt of a certificate from such Lender or Issuing Bank (with a copy Premier shall pay to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail Agent or such determination and the basis thereof, the Company shall be obligated to pay to such Lender or Issuing Bank Funding Party such additional amount or amounts as will compensate such Lender or Issuing Bank Funding Party for such increased cost or reduction.
(b) If, after If any of the date hereof, Funding Parties shall have determined that any Agent, Regulatory Change (including any Lender such Regulatory Change that results in or results from or otherwise relates to any transaction in connection with any of the Funding Agreements or any Issuing Bank reasonably determines that commitment thereunder or hereunder being classified as a Change in Law affecting such Agent, Lender highly leveraged transaction for regulatory or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements other purposes) has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s Funding Party's capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, as a consequence of this Agreement, such Funding Party's obligations or commitment under any of the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, Funding Agreements to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company Funding Party could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or Issuing Bank’s Funding Party's policies and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank with respect to be materialcapital adequacy), then, subject to Section 9.3(c), from time to timetime upon demand by the Agent, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company Premier shall pay to the Agent or such Lender or Issuing Bank Funding Party such additional amount or amounts as will compensate such Lender or Issuing Bank Funding Party for such reduction suffered or the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Creditreduction.
(c) Each If any Person shall become entitled to claim any additional amounts pursuant to Section 6.3(a) or 6.3(b), such Person (i) shall promptly notify Premier, through the Agent, of the Agentsevent or circumstance by reason of which it has become so entitled, the Lenders and (ii) shall deliver to Premier and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender Agent one or an Issuing Bank other than the Administrative Agent, the Administrative Agent of the circumstances that entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to avoid the need for, or reduce the amount of, such compensation, and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faith, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and more certificates setting forth the amounts due to such Person under Section 6.3(a) or 6.3(b), a description of such event or circumstance by reason of which it has become entitled to such amount and the manner of computation and calculation of such amount; provided, however, it is agreed by way of clarification that claims for any additional amount amounts pursuant to Section 6.3(a) or amounts 6.3(b) must be reasonably attributable to be paid to it hereunder the transactions which are the subject of the Transaction Documents and accompanied by a statement prepared by such Agentcertificate shall also reasonably demonstrate the connection with, and method of attribution to, such Lender transactions; provided further, however, claims for increased cost or reduced returns pursuant to Section 6.3(a) or 6.3(b) shall only be payable if the Regulatory Changes are generally applicable to the banking or other applicable industry in the country of origin of the applicable Funding Party or in the country in which the applicable Funding Party operates. Each such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof certificate shall be prima facie evidence of the correctness thereof. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.conclusive absent manifest
Appears in 1 contract
Samples: Receivables Purchase Agreement (Chrysler Financial Corp)
Increased Cost and Reduced Return. If on or after (ax) Ifthe date hereof, a Change in Lawthe case of any Committed Loan or Letter of Credit or any obligation to make Committed Loans or issue or participate in any Letter of Credit or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (orsuch authority, if later, after the date such Agent, such Issuing Bank, central bank or such Lender becomes an Agent, an Issuing Bank or a Lender):comparable agency:
(ia) subjects shall subject any Lender or Issuing Bank (or its applicable Applicable Lending Office) to any Taxtax, duty or other charge related with respect to any Loanits Fixed Rate Loans, Reimbursement Obligation, its Note or its obligation to advance or maintain make Fixed Rate Loans or issue any Letter its obligations hereunder in respect of Letters of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, Fixed Rate Loans or any other amounts due under this Agreement related to in respect of its Loans, Letters of Credit, Reimbursement Obligations or participations therein, Fixed Rate Loans or its obligation to make Loans, issue Letters Fixed Rate Loans (except for changes in the rate of Credit, tax on the overall net income of such Lender or acquire participations therein (other than, its Applicable Lending Office imposed by the jurisdiction in each case, (A) Indemnified Taxes, (B) Taxes described in clauses which such Lender's principal executive office or Applicable Lending Office is located); or
(b) shall impose, modify or (c) of the definition of “Excluded Taxes” and (C) Connection Income Taxes);
(ii) imposes, modifies or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, but excluding, with respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve Percentage), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Note or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue its obligations hereunder in respect to Letters of Credit or participate in any thereof; orCredit;
(iiic) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of Credit or participation therein; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate participating in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall be obligated to pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such increased cost or reduction.
(b) . If, after the date hereof, any AgentLender shall have determined that any applicable law, rule or regulation regarding capital adequacy (irrespective of the actual timing of the adoption or implementation thereof and including, without limitation, any Lender law or regulation adopted pursuant to the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices) or any Issuing Bank reasonably determines that a Change change therein, or any change in Law affecting such Agentthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or Issuing Bank its Applicable Lending Office) with any request or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, directive regarding capital adequacy (whether or liquidity requirements not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s, Issuing Bank’s capital or on the capital of such Lender’s, Issuing Bank’s holding company, if any, Lender (or its Parent) as a consequence of this Agreement, the Commitments of such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Issuing Bank, 's obligations hereunder to a level below that which such Lender (or Issuing Bank or such Lender’s or Issuing Bank’s holding company its Parent) could have achieved but for such Change in Law law, regulation, change or compliance (taking into consideration such Lender’s or Issuing Bank’s its policies and the policies of such Lender’s or Issuing Bank’s holding companywith respect to capital adequacy) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), then from time to time, within thirty (30) 15 days after its receipt of a certificate from demand by such Lender or Issuing Bank (with a copy to the Administrative Agent) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof), the Company Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender (or Issuing Bank its Parent) for such reduction suffered or reduction. Each Lender will promptly notify the Company may prepay all SOFR Loans of such Lender or obtain the cancellation of all such Letters of Credit.
(c) Each of the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithLender, be otherwise disadvantageous to it; provided that the foregoing shall not in any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such Lender. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, claiming compensation under this Section 9.3, and setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agent, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank may use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Cost and Reduced Return. (a) IfIf on or after the Effective Date, a in the case of any Committed Loan or L/C Credit Extension or any obligation to make or participate in Committed Loans or L/C Credit Extensions, any Change in Law, or compliance by any Agent, any Lender or Issuing Bank (or its applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority issued after the date hereof (or, if later, after the date such Agent, such Issuing Bank, or such Lender becomes an Agent, an Issuing Bank or a Lender):Law shall:
(i) subjects impose on any Lender Bank Party any other condition, cost or Issuing expense affecting this Agreement or Fixed Rate Loans made by such Bank Party or participation therein; or
(or its applicable Lending Officeii) subject any Recipient to any Tax, duty or other charge related to any Loan, Reimbursement Obligation, or its obligation to advance or maintain Loans or issue any Letter of Credit, or shall change the basis of taxation of payments to any Lender or Issuing Bank (or its applicable Lending Office) of the principal of or interest on its Loans, Letters of Credit or Reimbursement Obligation or any participations in any thereof, or any other amounts due under this Agreement related to its Loans, Letters of Credit, Reimbursement Obligations or participations therein, or its obligation to make Loans, issue Letters of Credit, or acquire participations therein Taxes (other than, in each case, than (A) Indemnified Taxes, Taxes and (B) Taxes described in clauses (b) or (c) and (d) of the definition of “Excluded Taxes” Taxes and (C) Other Connection Income Taxes on gross or net income, profits or revenue (including value-added or similar Taxes)) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(iiiii) imposesimpose, modifies modify or deems deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve Board) System, special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank Party (or its applicable Applicable Lending Office) or imposes shall impose on any Lender or Issuing Bank Party (or its Applicable Lending Office) or on the London interbank market any other condition affecting its SOFR Fixed Rate Loans, Letters of Credit, any Reimbursement Obligations owed to it, or its participations in any thereof, Notes or its obligation to advance make Fixed Rate Loans or maintain SOFR Loans, issue Letters of Credit make or participate in any thereof; or
(iii) imposes on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or Issuing Bank or any Letter of L/C Credit or participation thereinExtensions; and the result of any of the foregoing is to increase the cost to such Lender or Issuing Bank Party (or its applicable Applicable Lending Office) of making, converting to, continuing making or maintaining any Loan, Fixed Rate Loan or to increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining any Letter of L/C Credit Extension (or of maintaining its obligation to participate in or to issue any Letter of Creditparticipation therein), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank Party (or its applicable Applicable Lending Office) (whether of principal, interest or any other amount) in connection therewith under this Agreement or under its NoteNote with respect thereto, by an amount deemed by such Lender or Issuing Bank Party to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) 15 days after following the Borrower’s receipt of a the certificate from referenced in clause (c) by such Lender Bank Party or Issuing Bank such other Recipient (with a copy to the Administrative Agent), (i) pursuant to Section 9.3(c) below setting forth in reasonable detail such determination and the basis thereof, the Company Borrower shall be obligated to pay to such Lender or Issuing Bank Party such additional amount or amounts as will compensate such Lender Bank Party or Issuing Bank such other Recipient for such increased cost or reductionreduction suffered (including any amount or amounts equal to any taxes on the overall net income of such Bank Party or such other Recipient payable by such Bank Party or such other Recipient with respect to the amount of payments required to be made pursuant to this Section 8.03(a)) as reasonably determined by such Bank Party (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and only if such additional amount or amounts are passed on in a similar manner by such Bank Party to similarly situated borrowers (which are parties to credit or loan documentation containing a provision similar to this Section 8.03(a), as determined by such Bank Party in its reasonable discretion, or (ii) convert such Bank Party’s Loans so affected by such Change in Law to Base Rate Loans and pay any related breakage costs pursuant to Section 2.14 and any accrued increased costs pursuant to this Section 8.03).
(b) IfIf a Bank Party, after the date hereofother than a Defaulting Bank, any Agent, any Lender or any Issuing Bank reasonably determines that a any Change in Law affecting such AgentLaw, Lender or Issuing Bank or [Senior Secured Revolving Credit Agreement] any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would will have the effect of reducing increasing the rate amount of return on such Lender’s, Issuing Bank’s capital or liquidity required or expected to be maintained by such Bank Party based on the capital existence of such Lender’sBank Party’s Commitment hereunder or its obligations hereunder, Issuing Bankit will notify the Borrower. This determination will be made on a Bank Party-by-Bank Party basis. The Borrower shall (i) within 15 days following the Borrower’s holding company, if any, receipt of the certificate referenced in clause (c) pay to each Bank Party on demand such additional amounts as are necessary to compensate for the increased cost to such Bank Party as a consequence result of this Agreement, the Commitments of any Change in Law or (ii) convert such Lender or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued Bank Party’s Loans so affected by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies to a Base Rate Loan and the policies of such Lender’s or Issuing Bank’s holding company) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, subject to Section 9.3(c), from time to time, within thirty (30) days after its receipt of a certificate from such Lender or Issuing Bank (with a copy to the Administrative Agent) pay any related breakage costs pursuant to Section 9.3(c2.14 and any accrued increased costs pursuant to this Section 8.03. In determining such amount, such Bank Party will act reasonably and in good faith (and not on an arbitrary or capricious basis) below setting forth and will use averaging and attribution methods which are reasonable, and such Bank Party will pass such costs on to the Borrower only if such costs are passed on in a similar manner by such Bank Party to similarly situated borrowers (which are parties to credit or loan documentation containing a provision similar to this Section 8.03(b)), as determined by such Bank Party in its reasonable detail such discretion. Each Bank Party’s determination and of compensation shall be conclusive if made in accordance with this provision. Each Bank Party, upon determining that any increased costs will be payable pursuant to this Section 8.03(b), will give prompt written notice thereof to the Borrower, which notice shall show the basis thereof, the Company shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction suffered or the Company may prepay all SOFR Loans calculation of such Lender increased costs, although the failure to give any such notice shall not release or obtain diminish any of the cancellation of all such Letters of CreditBorrower’s obligations to pay increased costs pursuant to this Section 8.03(b).
(c) Each of Bank Party will promptly notify the Agents, the Lenders Borrower and the Issuing Banks that determines to seek compensation under this Section 9.3 shall give written notice to the Company and, in the case of a Lender or an Issuing Bank other than the Administrative Agent, the Administrative Agent of any event of which it has knowledge, occurring after the circumstances that date hereof, which will entitle such Agent, such Lender or such Issuing Bank Party to such compensation no later than ninety (90) days after such Agent, such Lender or such Issuing Bank receives actual notice or obtains actual knowledge of the law, rule, order or interpretation or occurrence of another event giving rise pursuant to a claim hereunder. In any event the Company shall have no any obligation to pay any amount with respect to claims accruing prior to the ninetieth day preceding such written demand; provided that, if the basis or circumstances in respect of this Section 9.3 giving rise to and will designate a different Applicable Lending Office if such compensation is retroactive, then such 90-day period referred to in this sentence shall be extended to include the period with retroactive effect thereof. Each of the Agents, the Lenders and the Issuing Banks shall use reasonable efforts to designation will avoid the need for, or reduce the amount of, such compensation, compensation and any payment under Section 3.3, including, without limitation, the designation of a different Lending Office, if such action or designation will not, in the sole judgment of such Agent, such Lender or such Issuing Bank made in good faithParty, be otherwise disadvantageous to it; provided that such Bank Party. The Borrower hereby agrees to pay the foregoing shall not reasonable costs and expenses incurred by such Bank Party in connection with any way affect the rights of any Lender or any Issuing Bank or the obligations of the Company under this Section 9.3such designation. A certificate of any Agent, any Lender or any Issuing Bank, as applicable, Bank Party claiming compensation under this Section 9.3, and shall furnish a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder and accompanied by a statement prepared by such Agenthereunder, such Lender or such Issuing Bank, as applicable, describing in reasonable detail the calculations thereof which shall be prima facie evidence conclusive in the absence of the correctness thereofmanifest error. In determining such amount, such Lender or such Issuing Bank Party may use any reasonable averaging and attribution methods.
(d) Failure or delay on the part of any Bank Party to demand compensation pursuant to this Section 8.03 shall not constitute a waiver of such Bank Party’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Bank Party pursuant to this Section 8.03 for any increased costs or reductions incurred more than six months prior to the date that such Bank Party notifies the Borrower and the Administrative Agent of the Change in Law giving rise to such increased costs or reductions and of such Bank Party’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions are retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
