Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts or promulgates after the date hereof any Law, or any request, guideline or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which shall either (a) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against the Loan, or (b) impose on the Lender any other condition regarding the Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause (a), (b) or (c) above shall be to increase the cost to the Lender of making, funding or maintaining the Loan or to reduce the amount of any sum receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, additional amounts which shall be sufficient to compensate the Lender for such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposes.
Appears in 2 contracts
Samples: Loan Agreement (K-Sea Transportation Partners Lp), Loan Agreement (K-Sea Transportation Partners Lp)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other governmental authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase in any material respect the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate of returnreductions in amount. With respect to this Section 9.2, provided that the Lender shall treat Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the differently than Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be finalfinal and conclusive absent manifest error. Failure or delay on the part of Lender to demand compensation pursuant to this Section shall not constitute a waiver of Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate Lender pursuant to this Section for any increased costs incurred more than 180 days prior to the date that Lender notifies Borrower of the change giving rise to such increased costs and of Lender’s intention to claim compensation therefor; provided further that, conclusive and binding on all parties for all purposesif the change giving rise to such increased costs is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (Talend SA), Loan and Security Agreement (Talend SA)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 2 contracts
Samples: Loan Agreement (BRIX REIT, Inc.), Loan Agreement (Rw Holdings NNN Reit, Inc.)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Agent or such Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 2 contracts
Samples: Loan and Security Agreement (Project Clean, Inc.), Loan and Security Agreement (Project Clean, Inc.)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law), in each case, occurring after the date hereof, shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 2 contracts
Samples: Loan and Security Agreement (On Deck Capital Inc), Loan and Security Agreement (On Deck Capital Inc)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Nlight, Inc.)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender such additional amounts as will compensate Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentenceor its agents, additional amounts which shall be sufficient to compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 2 contracts
Samples: Settlement and General Release Agreement (Ronco Brands, Inc.), Loan and Security Agreement (As Seen on TV, Inc.)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced reductions in amount. All amounts payable under this Section shall bear interest from the date of demand by Lender until payment in full to Lender at the highest interest rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. A certificate of Lender but not claiming compensation under this Section, specifying the event herein above described and the nature of general application such event shall be submitted by Lender to other similar lendersBorrower, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis additional amount due and an explanation of the calculation thereof, and Xxxxxx’s reasons for requesting such compensation invoking the provisions of this Section, and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 2 contracts
Samples: Super Priority Loan and Security Agreement (Real Good Food Company, Inc.), Junior Lien Intercreditor Agreement (Real Good Food Company, Inc.)
Increased Costs and Reduced Return. The Borrower agrees (a) If any Lender shall have determined that if the adoption or implementation of, or any Governmental Authority enacts change in, in each case after the date hereof, any law, rule, treaty, regulation, policy, guideline or promulgates directive of, or any change after the date hereof in the interpretation or administration thereof by, any Lawcourt, central bank or other administrative or Governmental Authority, or compliance by any requestLender or any Person controlling any Lender with any directive or guideline from any central bank or other Governmental Authority, guideline issued or directive given after the date hereof, in each case applicable to any Lender or any Person controlling any such Lender (whether or not having the force of law and whether or not failure law), shall (i) change (other than a change which occurs before such Lender becomes a Lender) the basis of taxation of payments to comply therewith would be unlawful) any Lender or any change in the interpretation or administration Person controlling any Lender of any existing Law by amounts payable hereunder (except for taxes on the overall net income or gross receipts of any Governmental Authority charged with the administration thereofLender or any Person controlling any such Lender and franchise taxes) (imposed in lieu of net income taxes) and branch profits taxes, which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the Loanany Loan or against assets of or held by, or deposits with or for the account of, or credit extended by any Lender, or any Person controlling any such Lender (bbut excluding reserves otherwise taken into account in the determination of the LIBO Rate) or (iii) impose on the any Lender or any Person controlling any such Lender or any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause (ai), (bii) or (ciii) above shall be to increase the cost to the any Lender of making, funding making any Loan or maintaining the agreeing to make any Loan or to reduce any amount received or receivable by any Lender hereunder, then, upon demand by such Lender, the Borrowers shall pay to such Lender such additional amounts as will compensate such Lender for such increased costs or reductions in amount.
(b) If any Lender shall have determined that the adoption or implementation of, or any change in, in each case after the date hereof, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Person controlling any Lender with any request or directive of any such Governmental Authority, issued or given after the date hereof, with respect to any Capital Guideline (whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any sum receivable by the Lender or any Person controlling any Lender, and any Lender determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, or any Lender’s 's or any such controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any such controlling Person's capital with respect to the Loan to a level below that which the such Lender or such controlling Person could have achieved but for such impositioncircumstances as a consequence of any Loans made or maintained, modification or deemed applicability any agreement to make Loans, or such Lender's or such controlling Person's other obligations hereunder (in each case, taking into consideration the such Lender’s 's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material), then, upon demand by the Lender in writingany Lender, the Borrower Borrowers shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, such Lender from time to time such additional amounts which shall be sufficient to as will compensate the such Lender for such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that maintaining such increased cost capital or such reduction in the rate of return on capital such Lender's or such controlling Person's capital.
(c) All amounts payable under this Section 3.4 shall bear interest from the date that is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender ten days after the date hereof, of demand by a Lender until payment in full to such Lender at the Reference Rate. A certificate of any Lender claiming compensation under this Section 3.4 specifying the event herein above described and the nature of such event shall be submitted by such Lender to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest errorAdministrative Borrower, a statement setting forth the basis additional amount due and an explanation of the calculation thereof and such Lender's reasons for requesting invoking the provisions of this Section 3.4, and shall be final and conclusive absent manifest error. Each Lender shall give the Administrative Borrower notice, promptly after the Agent has knowledge thereof, of the occurrence of any event in respect of which such compensation Lender expects to demand payment of any additional amount under this Section 3.4.
(d) If any of the events requiring payments of additional amounts by the Borrowers under this Section 3.4 occurs and the method forapplicable Lender shall have made a demand for such payment hereunder, the applicable Lender shall take such steps as may be reasonable (consistent with its internal policy and reasonable calculations for, determining legal and regulatory restrictions) to (i) change the jurisdiction of its funding office if such change would avoid the Borrowers being required to pay any additional amount thereof, submitted by or (ii) otherwise mitigate the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposeseffects of any law or regulation or any change therein or interpretation thereof as set forth in this Section 3.4.
Appears in 1 contract
Samples: Loan Agreement (Sunterra Corp)
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after the date hereof hereof, the adoption of or any Lawchange in any applicable Law or in the interpretation or application thereof applicable to any Lender (or its Applicable Lending Office), or compliance by any request, guideline Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law Law) from any central bank or other Governmental Authority, in each case made subsequent to the Effective Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender (or its Applicable Lending Office) to any tax of any kind whatsoever with respect to any Letter of Credit, any Eurocurrency Loans made by it or any of its Notes or its obligation to make Eurocurrency Loans or to participate in Letters of Credit, or change the basis of taxation of payments to such Lender (or its Applicable Lending Office) in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by Section 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would be unlawfulwith its obligations under Section 3.01(d)) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which and (B) Excluded Taxes);
(ii) shall either (a) impose, affect, modify or deem hold applicable any reserve, special deposit, capital maintenance compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the Loanaccount of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (bor its Applicable Lending Office) which is not otherwise included in the determination of the Eurocurrency Rate hereunder; or
(iii) shall impose on the such Lender (or its Applicable Lending Office) any other condition regarding the Loan, this Agreement, or the Note, or (c) result in excluding any requirement regarding capital adequacy (including tax of any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender kind whatsoever); and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the such Lender (or its Applicable Lending Office) of making, funding converting into, continuing or maintaining the Loan any Eurocurrency Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to pay such Lender, within 10 Business Days of its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable Law regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any sum receivable such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital adequacy), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction; provided that the Borrower shall not be required to compensate any Lender pursuant to subsection (a) above or this subsection (b) for any additional costs or reductions suffered more than 180 days prior to the date such Lender notifies the Borrower of the circumstances giving rise to such additional costs or reductions and of such Lender’s intentions to claim compensation therefor, and provided further that, if the Change in Law or in the interpretation or administration thereof giving rise to such additional costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. Each determination by any such Lender of amounts owing under this Section 3.04 shall, absent manifest error, be conclusive and binding on the parties hereto.
(c) A certificate in reasonable detail of each Lender setting forth such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in subsection (a) or (b) above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender or the Lender’s rate Issuing Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its reasonable judgment, result in a request for increased compensation pursuant to this Section 3.04, such Lender shall notify the Borrower thereof. Failure on the part of any Lender 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 the Loan to any period shall not constitute a level below that which the Lender could have achieved but for waiver of such imposition, modification or deemed applicability (taking into consideration the Lender’s policies right to demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period, except as expressly otherwise provided above. The protection of this Section 3.04 shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts or promulgates after the date hereof any Law, or any request, guideline or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which shall either (a) If any Lender shall have determined that any Regulatory Change (other than with respect to taxes referred to in Section 3.06 hereof) shall (i) change the basis of taxation of payments to the Lender of any amounts payable hereunder with respect to any Eurodollar Advance (except for taxes based on the overall net income of such Lender or its Applicable Lending Office), (ii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement (other than Reserve Requirements used in the determination of the Adjusted Eurodollar Rate) against any Eurodollar Advance or against assets held by, or deposits with or for the Loanaccount of, such Lender, or (biii) impose on the applicable Lender any other condition regarding the Loan, this Agreement, its Note or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender Eurodollar Advance and the result of any event referred to in clause (ai), (bii) or (ciii) above shall be to increase the cost to the applicable Lender of making, funding making or maintaining any Eurodollar Advance or the Loan funding for any Eurodollar Advance, or to reduce the any amount of any sum received or receivable by the Lender hereunder with respect to any such Advance, then, within ten (10) Business Days of written demand by the applicable Lender (made through the Administrative Agent), the Borrowers shall jointly and severally pay to the Administrative Agent for the account of the applicable Lender such additional amounts as will compensate the Lender for such increased costs or reductions in amount.
(b) If any Lender shall have determined that any Regulatory Change shall impose, modify or deem applicable any capital adequacy or similar requirement (including, without limitation, a request or requirement that affects the Lender’s manner in which the applicable Lender allocates capital resources to its Commitment and Advances) that either affects or would affect the amount of capital to be maintained by the applicable Lender as a consequence of its commitments or obligations hereunder or reduces or would reduce the rate of return on the Lender's capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification Regulatory Change as a consequence of its commitments or deemed applicability obligations hereunder (taking into consideration the Lender’s 's policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material), then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of written demand THIRD AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 39 47 by the applicable Lender (made through the Administrative Agent), the Borrowers shall jointly and severally pay to the Administrative Agent for the account of the Lender’s written demand and the statement described in the following sentence, applicable Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that maintaining such increased cost capital or such reduction in the rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in 's capital.
(c) Before making any claims pursuant to Section 4.01(a) or 4.01(b) hereof, the Loan applicable Lender, shall, if practicable, designate a different Applicable Lending Office if such designation will avoid the need for making such claim and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurredwill not, in the case reasonable judgment of any Person that becomes the applicable Lender be otherwise disadvantageous to the applicable Lender. If the applicable Lender does make a Lender after the date claim pursuant to subsection 4.01(a) or 4.01(b) hereof, it shall give notice to the extent that the amount Borrowers of the increased cost or reduction event by reason of which it is entitled to do so accompanied by a certificate as described in rate of return on capital exceeds the amount subsection 4.01(d).
(d) A certificate of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial applicable Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such claiming compensation and the method for, and reasonable calculations for, determining the amount thereof, under this Section 4.01 shall be submitted by the Lender to the BorrowerAdministrative Agent and the Borrowers, setting forth the Lender's reasons for invoking the provisions of this Section 4.01, and shall be finalfinal and conclusive (absent manifest error) as to the amount thereof, conclusive provided that any determination by a Lender as to the occurrence and binding effect of a Regulatory Change for purposes of this Section 4.01 shall be made on all parties for all purposesa reasonable basis.
Appears in 1 contract
Samples: Credit Agreement (Coho Energy Inc)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against any loan, or against assets of or held by, or deposits with or for the Loanaccount of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the to reduce any amount received or agreeing to make any Loan or to reduce the amount of any sum receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees (a) If any Lender shall have determined in its sole judgment that if any Governmental Authority enacts or promulgates after the date hereof any Lawadoption, implementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of, or any change in the interpretation or administration thereof by, any court, central bank or other administrative authority or Governmental Authority, or compliance by such Lender with any directive of or guideline from any central bank or other administrative authority or Governmental Authority or the introduction of or change in any accounting principles applicable to Lender (in each case, whether or not having the force of law), shall (i) change the basis of taxation of payments to such Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of such Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against any of the LoanObligations of Borrower to such Lender or against assets of or held by, or deposits with or for the account of, or credit extended by, such Lender, or (biii) impose on the such Lender any other condition regarding this Agreement or any of the LoanObligations of Borrower to such Lender, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the such Lender of making, funding making any Revolving Loan or maintaining the its agreement to make any Revolving Loan or to reduce any amount received or receivable by such Lender hereunder, then, upon demand by Agent, Borrower shall pay to such Lender, in immediately available funds, such additional amounts as will compensate such Lender for such increased costs or reductions in amount, together with interest on such additional amounts.
(b) If any Lender shall have determined in its sole judgment exercised reasonably that any Capital Guideline or adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by such Lender with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, of the implementation of, or any change in, any applicable accounting principles (in each case, whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by such Lender, and such Lender determines that the amount of such capital is increased as a direct or indirect consequence of any sum receivable by the Lender Revolving Loan made or the maintained, or any commitment or agreement to make Advances, or such Lender’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on such Lender’s capital with respect to the Loan to a level below that which the such Lender could have achieved but for such impositioncircumstances as a consequence of any Revolving Loan made or maintained or the commitment or agreement to make Advances, modification or deemed applicability such Lender’s other obligations hereunder (in each case, without limitation, taking into consideration the such Lender’s policies policy with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material), then, upon demand by the Lender in writingAgent, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, such Lender from time to time such additional amounts which shall be sufficient to as will compensate the such Lender for such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that maintaining such increased cost capital or such reduction in the rate of return on capital is a result such Lender’s capital.
(c) All amounts payable under this Section 12.3 shall bear interest from the date of demand by Agent until payment in full to the applicable Lender at the Default Rate. A certificate of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note Lender claiming compensation under this Section 12.3 shall be submitted by such Lender to another lending officeBorrower, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis amount due and such Lender’s reasons for requesting such compensation and invoking the method forprovisions of this Section 12.3, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, final and conclusive and binding on all parties for all purposes(absent manifest error).
Appears in 1 contract
Samples: Loan and Security Agreement (C2 Global Technologies Inc)
Increased Costs and Reduced Return. The Borrower agrees If a Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. For purposes of returnthis Agreement, provided that (i) the Borrower Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, guidelines and directives 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 regulatory authorities, in each case pursuant to Basel III, shall in each case, be deemed to have no obligation to pay any such amount (x) been adopted and gone into effect after the date of this Agreement. All amounts payable under this Section shall bear interest from the date of demand by the Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts or promulgates If after the date hereof hereof, any LawFunding Source shall be charged any fee, expense or increased cost on account of the adoption of any applicable law, rule or regulation (including any applicable law, rule or regulation regarding capital adequacy) or any change therein, or any requestchange in the interpretation or administration thereof by any governmental authority, guideline central bank or comparable agency charged with the interpretation or administration thereof, or compliance with any request or directive (whether or not having the force of law and whether law) of any such authority, central bank or not failure comparable agency (a "Regulatory Change"): (i) which subjects any Funding Source to comply therewith would be unlawfulany charge or withholding on or with respect to any Funding Agreement or a Funding Source's obligations under a Funding Agreement, or on or with respect to the Receivables, or changes the basis of taxation of payments to any Funding Source of any amounts payable under any Funding Agreement (except for changes in the rate of tax on the overall net income of a Funding Source) or any change in the interpretation (ii) which imposes, modifies or administration of any existing Law by any Governmental Authority charged with the administration thereof, which shall either (a) impose, affect, modify or deem deems applicable any reserve, assessment, insurance charge, special deposit, capital maintenance deposit or similar requirement against assets of, deposits with or for the Loanaccount of a Funding Source, or credit extended by a Funding Source pursuant to a Funding Agreement or (biii) impose on the Lender which imposes any other condition regarding the Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause (a), (b) or (c) above shall be which is to increase the cost to a Funding Source of performing its obligations under a Funding Agreement, or to reduce the Lender rate of makingreturn on a Funding Source's capital as a consequence of its obligations under a Funding Agreement, funding or maintaining the Loan or to reduce the amount of any sum received or receivable by the Lender a Funding Source under a Funding Agreement or the Lender’s rate of return on capital with respect to require any payment calculated by reference to the Loan to a level below that which the Lender could have achieved but for such imposition, modification amount of interests or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) loans held or interest received by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be materialit, then, upon demand by the Lender in writingAgent, the Borrower Seller shall pay to the LenderAgent, within ten (10) Business Days after receipt for the benefit of the Lender’s written demand and relevant Funding Source, such amounts charged to such Funding Source or compensate such Funding Source for such reduction; provided, however, that the statement Seller shall not be obligated to reimburse any Funding Source other than an Investor for any of the increased costs described in the following sentenceforegoing clauses (i), additional amounts which (ii) or (iii) unless such Funding Source is entitled to seek and, in fact demands, reimbursement therefor from a Purchaser or its assets. Each Investor agrees that it shall be sufficient use its reasonable best efforts to compensate attempt to avoid the Lender for such incurrence of the increased cost or reduced rate of return, costs described in Section 8.2(a); -------------- provided that the Borrower such Investor shall have no obligation not be obligated to pay take any such amount (x) to the extent action that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurredwould, in the case reasonable opinion of any Person that becomes a Lender after the date hereofsuch Investor, be disadvantageous to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the LoanInvestor. In the absence of manifest errorevent that any Funding Source claims any increased costs pursuant to Section 8.2(a), the applicable Purchaser will furnish to the Agent a statement -------------- certificate setting forth the basis and amount of each request for requesting reimbursement by such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted Funding Source. Determinations by the Lender a Purchaser of increased costs referred to the Borrower, in Section 8.2(a) shall be finalconclusive, conclusive and binding on all parties for all purposes.absent manifest error. --------------
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after (x) the date hereof hereof, in the case of any LawCommitted 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, the adoption of or any change in any applicable Law or in the interpretation or application thereof applicable to any Lender (or its Applicable Lending Office), or compliance by any request, guideline Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law Law) from any central bank or other Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending Office) to any tax of any kind whatsoever with respect to any Letter of Credit, any Eurodollar Loans made by it or any of its Notes or its obligation to make Eurodollar Loans or to participate in Letters of Credit, or change the basis of taxation of payments to such Lender (or its Applicable Lending Office) in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by Section 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would be unlawfulwith its obligations under Section 3.01(d)) and (B) changes in taxes measured by or imposed upon the overall net income, or franchise tax (imposed in lieu of such net income tax), of such Lender or its Applicable Lending Office, branch or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration affiliate thereof, which ));
(ii) shall either (a) impose, affect, modify or deem hold applicable any reserve, special deposit, capital maintenance compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the Loanaccount of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (bor its Applicable Lending Office) which is not otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on the such Lender (or its Applicable Lending Office) any other condition regarding the Loan, this Agreement, or the Note, or (c) result in excluding any requirement regarding capital adequacy (including tax of any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender kind whatsoever); and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the such Lender (or its Applicable Lending Office) of making, funding converting into, continuing or maintaining the Loan any Fixed Rate Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable Law, regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any sum receivable such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital adequacy), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction. Each determination by any such Lender of amounts owing under this Section 3.04 shall, absent manifest error, be conclusive and binding on the parties hereto; provided that the Borrower shall not be required to compensate any Lender pursuant to subsection (a) above or this subsection (b) for any additional costs or reductions suffered more than 180 days prior to the date such Lender notifies the Borrower of the circumstances giving rise to such additional costs or reductions and of such Lender’s intentions to claim compensation therefor, and provided further that, if the change in Law or in the interpretation or administration thereof giving rise to such additional costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(c) A certificate of each Lender setting forth such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in subsection (a) or (b) above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender or the Lender’s rate Issuing Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its sole judgment, result in a request for increased compensation pursuant to this Section 3.04, such Lender shall notify the Borrower thereof. Failure on the part of any Lender 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 the Loan to any period shall not constitute a level below that which the Lender could have achieved but for waiver of such imposition, modification or deemed applicability (taking into consideration the Lender’s policies right to demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period. The protection of this Section 3.04 shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Samples: Revolving Credit Agreement (Worthington Industries Inc)
Increased Costs and Reduced Return. The Borrower agrees If any Agent or any Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by any Agent or any Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Agent or any Lender (whether or not having the force of law and whether or not failure to comply therewith would be unlawfullaw) shall (i) subject any Agent or any Lender to any tax, duty or other charge with respect to this Agreement or any Loan made hereunder, or change in the interpretation basis of taxation of payments to any Agent or administration any Lender of any existing Law by amounts payable hereunder (except for taxes on the overall net income of any Governmental Authority charged with the administration thereofAgent or any Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Agent or any Lender, or (biii) impose on the any Agent or any Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the any Agent or any Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender any Agent or the any Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingany Agent or any Lender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, such Agent or such Lender such additional amounts which shall be sufficient to as will compensate the such Agent or such Lender for such increased cost costs or reduced reductions in amount. All amounts payable under this Section shall bear interest from the date of demand by any Agent or any Lender until payment in full to any Agent or any Lender at the highest interest rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. A certificate of Any Agent or any Lender but not claiming compensation under this Section, specifying the event herein above described and the nature of general application such event shall be submitted by such Agent or such Lender to other similar lendersBorrower, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis additional amount due and an explanation of the calculation thereof, and such Agent or such Xxxxxx’s reasons for requesting such compensation invoking the provisions of this Section, and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Samples: Super Priority Loan and Security Agreement (Real Good Food Company, Inc.)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined, in its Good Faith Business Judgment after consultation with legal counsel, that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after the date hereof hereof, in the case of any LawLoan or any obligation to make Loans, the adoption of or any change in any applicable Law or in the interpretation or application thereof applicable to any Lender (or its Applicable Lending Office), or compliance by any request, guideline Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law Law) from any central bank or other Governmental Authority, in each case made subsequent to the Effective Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender (or its Applicable Lending Office) to any tax of any kind whatsoever with respect to any Eurocurrency Loans made by it or any of its Notes or its obligation to make Eurocurrency Loans, or change the basis of taxation of payments to such Lender (or its Applicable Lending Office) in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by Section 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would be unlawfulwith its obligations under Section 3.01(d)) and (B) changes in taxes measured by or imposed upon the overall net income, or franchise tax (imposed in lieu of such net income tax), of such Lender or its Applicable Lending Office, branch or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration affiliate thereof, which ));
(ii) shall either (a) impose, affect, modify or deem hold applicable any reserve, special deposit, capital maintenance compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the Loanaccount of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (bor its Applicable Lending Office) which is not otherwise included in the determination of the Eurocurrency Rate hereunder; or
(iii) shall impose on the such Lender (or its Applicable Lending Office) any other condition regarding the Loan, this Agreement, or the Note, or (c) result in excluding any requirement regarding capital adequacy (including tax of any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender kind whatsoever); and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the such Lender (or its Applicable Lending Office) of making, funding converting into, continuing or maintaining the Loan any Eurocurrency Loans or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to Cxxxxxxxx from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable Law, regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any sum receivable such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital adequacy), then, upon notice from such Lender to Cxxxxxxxx, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction. Each determination by any such Lender of amounts owing under this Section shall, absent manifest error, be conclusive and binding on the parties hereto; provided, that if any Lender receives a rebate of any amount for which it had received compensation from the Borrower pursuant to subsection (a) or subsection (b) of this Section 3.04, any such Lender shall promptly remit any such rebated amount to the Borrower.
(c) A certificate of each Lender setting forth such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in subsection (a) or (b) above, as the Lender’s rate case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its sole judgment, result in a request for increased compensation pursuant to this Section, such Lender shall notify Cxxxxxxxx thereof. Failure on the part of any Lender so to notify Cxxxxxxxx or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to the Loan to any period shall not constitute a level below that which the Lender could have achieved but for waiver of such imposition, modification or deemed applicability (taking into consideration the Lender’s policies right to demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period. The protection of this Section shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Carpenter Technology Corp)
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after the date hereof hereof, the adoption of or any Lawchange in any applicable Law or in the interpretation or application thereof applicable to any Lender, or compliance by any request, guideline Lender with any request or directive (whether or not having the force of law Law) from any Governmental Authority, in each case made subsequent to the date hereof (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind whatsoever with respect to any of the Subordinated Debentures, or change the basis of taxation of payments to such Lender in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by Section 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would with its obligations under Section 3.01(d)) and (B) Excluded Taxes);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender; or
(iii) shall impose on such Lender any other condition (excluding any tax of any kind whatsoever); and the result of any of the foregoing is to increase the cost to such Lender of making, continuing or maintaining the Loan or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender in accordance herewith, the Borrower shall be unlawfulobligated to pay such Lender, within 10 Business Days of its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in the interpretation in, or administration of any existing Law change by any Governmental Authority charged with the interpretation or administration thereofthereof in the interpretation or administration of, any applicable Law regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any such Governmental Authority has or would have the effect of reducing the rate of return on such Lender's (or parent corporation's) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's (or parent corporation's) policies with respect to capital adequacy), then, upon notice from such Lender to the Borrower, the Borrower shall either be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction; provided, that the Borrower shall not required to compensate any Lender pursuant to subsection (a) imposeabove or this subsection (b) for any additional costs or reductions suffered more than 180 days prior to the date such Lender notifies the Borrower of the circumstances giving rise to such additional costs or reductions and of such Lender's intentions to claim compensation therefor, affectand provided, modify further, that, if the Change in Law or deem applicable in the interpretation or administration thereof giving rise to such additional costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. Each determination by any reservesuch Lender of amounts owing under this Section 3.02 shall, special depositabsent manifest error, capital maintenance be conclusive and binding on the parties hereto.
(c) A certificate in reasonable detail of each Lender setting forth such amount or similar requirement against the Loan, amounts as shall be necessary to compensate such Lender or its holding company as specified in subsection (a) or (b) impose above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its reasonable judgment, result in a request for increased compensation pursuant to this Section 3.02, such Lender shall notify the Borrower thereof. Failure on the Lender any other condition regarding the Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result part of any event referred Lender so to in clause (a), (b) or (c) above shall be to increase notify the cost to the Lender of making, funding or maintaining the Loan Borrower or to reduce the amount of demand compensation for any sum increased costs or reduction in amounts received or receivable by the Lender or the Lender’s rate of reduction in return on capital with respect to the Loan any period shall not constitute a waiver of such Lender's right to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period, except as expressly otherwise provided above. The protection of this Section 3.02 shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Agent or such Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be finalfinal and conclusive absent manifest error. If Borrower considers such cost increases under this Section 9.3 to be materially excessive or unreasonable, conclusive Borrower shall have the right to provide Lender with 60 days prior written notice of termination of this Agreement and binding on all parties repay the Obligations without having to pay the early termination fees provided for all purposesin Section 6.2 of this Agreement.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Samples: Loan and Security Agreement (Accelerize New Media Inc)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction Lender until payment in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable full to the Lender but not of general application at the interest rate otherwise payable hereunder with respect to other similar lendersthe applicable Loans. With respect to this Section 9.2, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably shall treat Borrower no differently than Lender treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Samples: Loan and Security Agreement (Xplore Technologies Corp)
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after the date hereof hereof, the adoption of or any Lawchange in any applicable Law or in the interpretation or application thereof applicable to any Lender (or its Applicable Lending Office), or compliance by any request, guideline Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law Law) from any central bank or other Governmental Authority, in each case made subsequent to the Closing Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender (or its Applicable Lending Office) to any tax of any kind whatsoever with respect to any Letter of Credit, any Eurodollar Loans made by it or any of its Notes or its obligation to make Eurodollar Loans or to participate in Letters of Credit, or change the basis of taxation of payments to such Lender (or its Applicable Lending Office) in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by Section 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would be unlawfulwith its obligations under Section 3.01(d)) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which and (B) Excluded Taxes);
(ii) shall either (a) impose, affect, modify or deem hold applicable any reserve, special deposit, capital maintenance compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the Loanaccount of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (bor its Applicable Lending Office) which is not otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on the such Lender (or its Applicable Lending Office) any other condition regarding the Loan, this Agreement, or the Note, or (c) result in excluding any requirement regarding capital adequacy (including tax of any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender kind whatsoever); and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the such Lender (or its Applicable Lending Office) of making, funding converting into, continuing or maintaining the Loan any Eurodollar Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to pay such Lender, within 10 Business Days of its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable Law regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any sum receivable such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital adequacy), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction; provided, that the Borrower shall not be required to compensate any Lender pursuant to subsection (a) above or this subsection (b) for any additional costs or reductions suffered more than 180 days prior to the date such Lender notifies the Borrower of the circumstances giving rise to such additional costs or reductions and of such Lender’s intentions to claim compensation therefor, and provided, further, that, if the Change in Law or in the interpretation or administration thereof giving rise to such additional costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. Each determination by any such Lender of amounts owing under this Section 3.04 shall, absent manifest error, be conclusive and binding on the parties hereto.
(c) A certificate in reasonable detail of each Lender setting forth such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in subsection (a) or (b) above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender or the Lender’s rate Issuing Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its reasonable judgment, result in a request for increased compensation pursuant to this Section 3.04, such Lender shall notify the Borrower thereof. Failure on the part of any Lender 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 the Loan to any period shall not constitute a level below that which the Lender could have achieved but for waiver of such imposition, modification or deemed applicability (taking into consideration the Lender’s policies right to demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period, except as expressly otherwise provided above. The protection of this Section 3.04 shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If a Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation Loan and Security Agreement or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. For purposes of returnthis Agreement, provided that (i) the Borrower Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, guidelines and directives 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 regulatory authorities, in each case pursuant to Basel III, shall in each case, be deemed to have no obligation to pay any such amount (x) been adopted and gone into effect after the date of this Agreement. All amounts payable under this Section shall bear interest from the date of demand by the Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Samples: Loan and Security Agreement
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after the date hereof hereof, the adoption of or any Lawchange in any applicable Law or in the interpretation or application thereof applicable to any Lender (or its Applicable Lending Office), or compliance by any request, guideline Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law Law) from any central bank or other Governmental Authority, in each case made subsequent to the Effective Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender (or its Applicable Lending Office) to any tax of any kind whatsoever with respect to any Letter of Credit, any Eurodollar Loans made by it or any of its Notes or its obligation to make Eurodollar Loans or to participate in Letters of Credit, or change the basis of taxation of payments to such Lender (or its Applicable Lending Office) in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by Section 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would be unlawfulwith its obligations under Section 3.01(d)) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which and (B) Excluded Taxes);
(ii) shall either (a) impose, affect, modify or deem hold applicable any reserve, special deposit, capital maintenance compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the Loanaccount of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (bor its Applicable Lending Office) which is not otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on the such Lender (or its Applicable Lending Office) any other condition regarding the Loan, this Agreement, or the Note, or (c) result in excluding any requirement regarding capital adequacy (including tax of any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender kind whatsoever); and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the such Lender (or its Applicable Lending Office) of making, funding converting into, continuing or maintaining the Loan any Eurodollar Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to pay such Lender, within 10 Business Days of its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable Law regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any sum receivable such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's (or parent corporation's) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's (or parent corporation's) policies with respect to capital adequacy), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction; provided, that the Borrower shall not required to compensate any Lender pursuant to subsection (a) above or this subsection (b) for any additional costs or reductions suffered more than 180 days prior to the date such Lender notifies the Borrower of the circumstances giving rise to such additional costs or reductions and of such Lender's intentions to claim compensation therefor, and provided, further, that, if the Change in Law or in the interpretation or administration thereof giving rise to such additional costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. Each determination by any such Lender of amounts owing under this Section 3.04 shall, absent manifest error, be conclusive and binding on the parties hereto.
(c) A certificate in reasonable detail of each Lender setting forth such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in subsection (a) or (b) above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender or the Lender’s rate Issuing Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its reasonable judgment, result in a request for increased compensation pursuant to this Section 3.04, such Lender shall notify the Borrower thereof. Failure on the part of any Lender 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 the Loan any period shall not constitute a waiver of such Lender's right to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period, except as expressly otherwise provided above. The protection of this Section 3.04 shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, not in effect of the date hereof, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts or promulgates (a) If after the date hereof hereof, any LawFunding Source shall be charged any fee, expense or increased cost on account of the adoption of any applicable law, rule or regulation (including any applicable law, rule or regulation regarding capital adequacy) or any change therein, or any requestchange in the interpretation or administration thereof by any governmental authority, guideline central bank or comparable agency charged with the interpretation or administration thereof, or compliance with any request or directive (whether or not having the force of law and whether law) of any such authority, central bank or not failure comparable agency (a "REGULATORY CHANGE"): (i) which subjects any Funding Source to comply therewith would be unlawfulany charge or withholding on or with respect to any Funding Agreement or a Funding Source's obligations under a Funding Agreement, or on or with respect to the Receivables, or changes the basis of taxation of payments to any Funding Source of any amounts payable under any Funding Agreement (except for changes in the rate of tax on the overall net income of a Funding Source) or any change in the interpretation (ii) which imposes, modifies or administration of any existing Law by any Governmental Authority charged with the administration thereof, which shall either (a) impose, affect, modify or deem deems applicable any reserve, assessment, insurance charge, special deposit, capital maintenance deposit or similar requirement against assets of, deposits with or for the Loanaccount of a Funding Source, or credit extended by a Funding Source pursuant to a Funding Agreement or (biii) impose on the Lender which imposes any other condition regarding the Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause (a), (b) or (c) above shall be which is to increase the cost to a Funding Source of performing its obligations under a Funding Agreement, or to reduce the Lender rate of makingreturn on a Funding Source's capital as a consequence of its obligations under a Funding Agreement, funding or maintaining the Loan or to reduce the amount of any sum received or receivable by the Lender a Funding Source under a Funding Agreement or the Lender’s rate of return on capital with respect to require any payment calculated by reference to the Loan to a level below that which the Lender could have achieved but for such imposition, modification amount of interests or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) loans held or interest received by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be materialit, then, upon demand by the Lender in writingAgent, the Borrower Seller shall pay to the LenderAgent, within ten (10) Business Days after receipt for the benefit of the Lender’s written demand and relevant Funding Source, such amounts charged to such Funding Source or compensate such Funding Source for such reduction; PROVIDED, HOWEVER, that the statement Seller shall not be obligated to reimburse any Funding Source other than an Investor for any of the increased costs described in the following sentenceforegoing clauses (i), additional amounts which (ii) or (iii) unless such Funding Source is entitled to seek and, in fact demands, reimbursement therefor from a Purchaser or its assets.
(b) Each Investor agrees that it shall be sufficient use its reasonable best efforts to compensate attempt to avoid the Lender for such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more incurrence of the following: (1) the Lender’s transfer of its interest increased costs described in the Loan and the Note Section 8.2(a); PROVIDED THAT such Investor shall not be obligated to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by take any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred-------------- action that would, in the case reasonable opinion of any Person that becomes a Lender after the date hereofsuch Investor, be disadvantageous to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the LoanInvestor. In the absence of manifest errorevent that any Funding Source claims any increased costs pursuant to Section 8.2(a), the applicable Purchaser will -------------- furnish to the Agent a statement certificate setting forth the basis and amount of each request for requesting reimbursement by such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted Funding Source. Determinations by the Lender a Purchaser of increased costs referred to the Borrower, in Section 8.2(a) shall be finalconclusive, conclusive and binding on all parties for all purposesabsent -------------- manifest error.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If, on or promulgates after the date hereof hereof, a Change in Law:
(i) shall impose, modify or hold applicable any Lawreserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any requestother acquisition of funds by, guideline any office of a Lender which is not otherwise included in the determination of the Adjusted Eurodollar Rate hereunder; or
(ii) shall impose on a Lender any other condition; and the result of any of the foregoing shall be to increase the cost to such Lender of making, continuing, converting into or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender and the Administrative Agent hereunder (whether of principal, interest or any other amount), then, upon request of such Lender, the Borrower will pay to such Lender and the Administrative Agent such additional amount or amounts as will compensate such Lender and the Administrative Agent for such additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that a Change in Law regarding capital adequacy, or compliance by such Lender and the Administrative Agent, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of law and whether or not failure to comply therewith would be unlawfullaw) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with such authority, central bank or comparable agency, has or would have the administration thereof, which shall either (a) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against effect of reducing the Loan, or (b) impose on the Lender any other condition regarding the Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause (a), (b) or (c) above shall be to increase the cost to the Lender of making, funding or maintaining the Loan or to reduce the amount of any sum receivable by the Lender or the Lender’s rate of return on such Lender’s (or parent corporation’s) capital with respect to the Loan or assets as a consequence of its commitments or obligations hereunder to a level below that which the Lender such Lender, or its parent corporation, could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (Change in the exercise of its reasonable discretion) to be materialLaw, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, additional amounts which shall be sufficient to compensate the Lender for notice from such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, the Borrower shall be finalobligated to pay to such Lender in accordance with Section 2.12(a), conclusive such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and binding on all parties credits in respect of the amount indemnified) for all purposessuch reduction.
Appears in 1 contract
Samples: Loan Agreement (PBF Holding Co LLC)
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts or promulgates (a) If the Lender shall determine that, after the date hereof hereof, the adoption of any Lawapplicable law, rule or regulation, or any requestchange therein, guideline 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 the Issuer or the Lender or its parent corporation with any requirement or directive (whether or not having the force of law and whether law) of any such authority, central bank or not failure comparable agency:
(i) shall subject the Issuer or the Lender or its parent corporation to comply therewith would be unlawful) any tax, duty or other similar charge with respect to any Letter of Credit, the Advances or the Demand Note or shall change the basis of taxation of payments to the Issuer or the Lender or its parent corporation of the Reimbursement Obligation, of the principal of or interest on the Advances or of any other amounts due under this Agreement in respect of any Letter of Credit, the Advances or the Demand Note (except for any change in the interpretation or administration respect of any existing Law by any Governmental Authority charged with tax imposed on the administration thereof, which overall income of the Issuer or the Lender or its parent corporation); or
(ii) shall either (a) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System) against assets of, deposits with or for the Loanaccount of, or (b) credit extended by, the Issuer or the Lender or its parent corporation or shall impose on the Issuer or the Lender or its parent corporation any other condition regarding affecting any Letter of Credit, the Loan, this Agreement, Advances or the Demand Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender ; and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the Issuer or the Lender or its parent corporation of making, funding issuing or maintaining the Loan any Letter of Credit or of making or maintaining any Advances, or to reduce the amount of any sum received or receivable by the Issuer or the Lender or its parent corporation under the application and agreement pursuant to which the Letter of Credit was issued, this Agreement or the Demand Note with respect thereto, by an amount deemed by the Lender or its parent corporation to be material, then upon demand by the Lender’s , the Borrower shall pay to the Lender such additional amount or amounts as will compensate the Issuer or the Lender or its parent corporation for such increased cost or reduction.
(b) If the Lender shall determine 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 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 Lender or its parent corporation with any guideline or request issued after the date hereof regarding capital adequacy (whether nor 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 Lender's or the Lender's parent corporation's capital with respect to as a consequence of any Letters of Credit, Advances or the Loan Lender's obligations hereunder to a level below that which the Lender or its parent corporation could have achieved but for such impositionadoption, modification change or deemed applicability compliance (taking into consideration the Lender’s 's policies with respect to capital adequacyadequacy and those of the Lender's parent corporation) by an amount deemed by to the Lender (in the exercise of or its reasonable discretion) parent corporation to be material, then, upon then from time to time on demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amount or amounts which shall be sufficient to as will compensate the Lender or its parent corporation for such increased cost or reduced rate reduction.
(c) Certificates of return, provided that the Lender sent to the Borrower shall have no obligation from time to pay any such amount (x) to time claiming compensation under this Section, stating the extent that such increased cost or reduction reason therefor and setting forth in rate of return on capital is a result of any one or more reasonable detail the calculation of the following: (1) the Lender’s transfer of its interest in the Loan and the Note additional amount or amounts to another lending office, (2) circumstances applicable be paid to the Lender but not of general application to other similar lendershereunder shall be conclusive absent manifest error. In determining such amounts, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by its parent corporation may use any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation reasonable averaging and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesattribution methods.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if the adoption or implementation of, or any change, after the date hereof, in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change, after the date hereof, in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority enacts or promulgates issued after the date hereof shall (i) subject the Lender to any Lawtax, duty or other charge with respect to this Agreement or any Loan made hereunder, or any request, guideline or directive (whether or not having change the force basis of law and whether or not failure taxation of payments to comply therewith would be unlawful) or any change in the interpretation or administration Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Samples: Loan and Security Agreement (Xtera Communications, Inc.)
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after the date hereof hereof, the adoption of or any Lawchange in any applicable Law or in the interpretation or application thereof applicable to any Lender (or its Applicable Lending Office), or compliance by any request, guideline Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law Law) from any central bank or other Governmental Authority, in each case made subsequent to the Effective Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender (or its Applicable Lending Office) to any tax of any kind whatsoever with respect to any Letter of Credit, any Eurodollar Loans made by it or any of its Notes or its obligation to make Eurodollar Loans or to participate in Letters of Credit, or change the basis of taxation of payments to such Lender (or its Applicable Lending Office) in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by Section 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would be unlawfulwith its obligations under Section 3.01(d)) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which and (B) Excluded Taxes);
(ii) shall either (a) impose, affect, modify or deem hold applicable any reserve, special deposit, capital maintenance compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the Loanaccount of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (bor its Applicable Lending Office) which is not otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on the such Lender (or its Applicable Lending Office) any other condition regarding the Loan, this Agreement, or the Note, or (c) result in excluding any requirement regarding capital adequacy (including tax of any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender kind whatsoever); and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the such Lender (or its Applicable Lending Office) of making, funding converting into, continuing or maintaining the Loan any Eurodollar Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to pay such Lender, within 10 Business Days of its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable Law regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any sum receivable such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital adequacy), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction; provided, that the Borrower shall not be required to compensate any Lender pursuant to subsection (a) above or this subsection (b) for any additional costs or reductions suffered more than 180 days prior to the date such Lender notifies the Borrower of the circumstances giving rise to such additional costs or reductions and of such Lender’s intentions to claim compensation therefor, and provided, further, that, if the Change in Law or in the interpretation or administration thereof giving rise to such additional costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. Each determination by any such Lender of amounts owing under this Section 3.04 shall, absent manifest error, be conclusive and binding on the parties hereto.
(c) A certificate in reasonable detail of each Lender setting forth such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in subsection (a) or (b) above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender or the Lender’s rate Issuing Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its reasonable judgment, result in a request for increased compensation pursuant to this Section 3.04, such Lender shall notify the Borrower thereof. Failure on the part of any Lender 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 the Loan to any period shall not constitute a level below that which the Lender could have achieved but for waiver of such imposition, modification or deemed applicability (taking into consideration the Lender’s policies right to demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period, except as expressly otherwise provided above. The protection of this Section 3.04 shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If a Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingXxxxxx, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. For purposes of returnthis Agreement, provided that (i) the Borrower Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, guidelines and directives 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 regulatory authorities, in each case pursuant to Basel III, shall in each case, be deemed to have no obligation to pay any such amount (x) been adopted and gone into effect after the date of this Agreement. All amounts payable under this Section shall bear interest from the date of demand by the Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposes.to
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees (a) If CIT or the Letter of Credit Issuer shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of, or any change in the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by the Letter of Credit Issuer or CIT or any Person controlling CIT or the Letter of Credit Issuer with any directive of or guideline from any central bank or other Governmental Authority or the introduction of or change in any accounting principles applicable to the Letter of Credit Issuer, CIT or any Person controlling CIT or the Letter of Credit Issuer (in each case, whether or not having the force of law), shall (i) change the basis of taxation of payments to the Letter of Credit Issuer, CIT or any Person controlling CIT or the Letter of Credit Issuer of any existing Law by amounts payable hereunder (except for taxes on the overall net income of the Letter of Credit Issuer, CIT or any Governmental Authority charged with Person controlling CIT or the administration thereofLetter of Credit Issuer), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, Letter of Credit or against assets of or held by, or deposits with or for the account of, or credit extended by, the Letter of Credit Issuer, CIT, or any Person controlling CIT or the Letter of Credit Issuer or (biii) impose on the Lender Letter of Credit Issuer, CIT or any Person controlling CIT or the Letter of Credit Issuer any other condition regarding the Loanthis Agreement or any Loan or Letter of Credit, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender Letter of makingCredit Issuer or CIT of making any Loan, funding issuing or maintaining the guaranteeing any Letter of Credit, or agreeing to make any Loan or issue or guaranty any Letter of Credit, or to reduce any amount received or receivable by the Letter of Credit Issuer or CIT hereunder, then, upon demand by the Letter of Credit Issuer or CIT, the Borrower shall pay to the Letter of Credit Issuer or CIT such additional amounts as will compensate the Letter of Credit Issuer or CIT for such increased costs or reductions in amount.
(b) If CIT or the Letter of Credit Issuer shall have determined that any Capital Guideline or adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by the Letter of Credit Issuer, CIT or any Person controlling such Letter of Credit Issuer or CIT with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, whether or not having the force of law), either (i) affects or would affect the amount of any sum receivable capital required or expected to be maintained by the Lender Letter of Credit Issuer, CIT or any Person controlling the Letter of Credit Issuer or CIT, and the Letter of Credit Issuer or CIT determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, Letters of Credit issued or any guaranty with respect thereto, or the Lender’s Letter of Credit Issuer's or CIT's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on the Letter of Credit Issuer's, CIT's or any such other controlling Person's capital with respect to the Loan to a level below that which the Lender Letter of Credit Issuer, CIT or such controlling Person could have achieved but for such impositioncircumstances as a consequence of any Loans made or maintained, modification Letters of Credit issued, or deemed applicability (taking into consideration the Lender’s policies any guaranty with respect thereto or any agreement to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, additional amounts which shall be sufficient to compensate the Lender for such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereofmake Loans, to issue Letters of Credit or the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposes.Letter
Appears in 1 contract
Samples: Revolving Credit Agreement (Fay Leslie Companies Inc)
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If, on or promulgates after the date hereof hereof, (i) the adoption of or any Lawchange in any Applicable Law (including any Existing Law (defined below)) or in the interpretation or application thereof applicable to any Lender, (ii) any request, guidance or directive (whether or not having the force of law) from any central bank or other Governmental Authority or (iii) the compliance, application or implementation by any Lender with the foregoing subclauses (i) or (ii) or any Existing Law (defined below), in each case made subsequent to the Effective Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded 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;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender which is not otherwise included in the determination of the applicable Euro-Rate; or
(iii) shall impose on such Lender any other condition; and the result of any of the foregoing is to increase the cost to such Lender of making, converting into, continuing or maintaining any Loans or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Agent, in accordance herewith, the Borrower shall be obligated to pay such Lender, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that (i) the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any Applicable Law (including any Existing Law), regarding capital adequacy or liquidity requirements, (ii) any request, guideline guidance or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, or (iii) the compliance, application or implementation by such Lender or its parent corporation of the foregoing subclauses (i) or (ii) or any Existing Law has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital adequacy or liquidity requirements), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender, such additional amount or amounts as will compensate such Lender for such reduction. Each determination by any such Lender of amounts owing under this Section shall, absent manifest error, be conclusive and binding on the parties hereto. For the avoidance of doubt, an Applicable Law regarding capital adequacy or liquidity requirements shall include, but not be limited to, (i) the final rule titled “Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues,” adopted by the United States bank regulatory agencies on December 15, 2009 (the “FAS 166/167 Capital Guidelines”); (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (iii) the revised Basel Accord prepared by the Basel Committee on Banking Supervision as set out in the publication entitled “Basel II: International Convergence of Capital Measurements and Capital Standards: A Revised Framework,” as updated from time to time (“Basel II”); (iv) the publication entitled “Basel III: A global regulatory framework for more resilient banks and banking systems,” as updated from time to time (“Basel III”); or (v) any implementing rules, regulations, guidance, interpretations or directives from any official body relating to the FAS 166/167 Capital Guidelines, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, Basel II or Basel III (whether or not having the force of law and whether any such Applicable Law becomes effective before or not failure after the date hereof) (collectively, “Existing Law”).
(c) A certificate of each Lender setting forth such amount or amounts as shall be necessary to comply therewith would be unlawful) compensate such Lender or any change its holding company as specified in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which shall either subsection (a) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against the Loan, or (b) impose above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender the amount shown as due on any such certificate delivered by it within ten (10) days following presentation thereof.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its sole judgment, result in a request for increased compensation pursuant to this Section, such Lender shall notify the Borrower thereof. Failure on the Lender any other condition regarding the Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result part of any event referred Lender so to in clause (a), (b) or (c) above shall be to increase notify the cost to the Lender of making, funding or maintaining the Loan Borrower or to reduce the amount of demand compensation for any sum increased costs or reduction in amounts received or receivable by the Lender or the Lender’s rate of reduction in return on capital with respect to the Loan to any period shall not constitute a level below that which the Lender could have achieved but for waiver of such imposition, modification or deemed applicability (taking into consideration the Lender’s policies right to demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period. The protection of this Section shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Samples: Revolving Asset Based Loan Agreement (Andersons, Inc.)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender such additional amounts as will compensate Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentenceor its agents, additional amounts which shall be sufficient to compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, shall be finalsetting forth the additional amount due and an explanation of the calculation thereof, conclusive and binding on all parties for all purposes.the Lender's reasons for
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts or promulgates after the date hereof any Law, or any request, guideline or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which shall either (a) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against the Loan, or (b) impose on the any Lender any other condition regarding the Loan, this Agreement, or the NoteNotes, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the any Lender being imposed or modified or deemed applicable to the any Lender and the result of any event referred to in clause (a), (b) or (c) above shall be to increase the cost to the any Lender of making, funding or maintaining the Loan or to reduce the amount of any sum receivable by the any Lender or the such Lender’s rate of return on capital with respect to the Loan to a level below that which the any such Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the such Lender’s policies with respect to capital adequacy) by an amount deemed by the such Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the such Lender in writing, the Borrower shall pay to the such Lender, within ten (10) Business Days after receipt of the such Lender’s written demand and the statement described in the following sentence, additional amounts which shall be sufficient to compensate the such Lender for such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the any Lender’s transfer of its interest in the Loan and the applicable Note to another lending office, (2) circumstances applicable to the any Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the any Lender (or an Affiliate of the such Lender) by any credit rating agency, or (4) the any Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the such Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the any Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposes.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If, on or promulgates after the date hereof hereof, (x) the adoption of or any Lawchange in any Applicable Law (including any Existing Law (defined below)) or in the interpretation or application thereof applicable to any Lender, (y) any request, guidance or directive (whether or not having the force of law) from any central bank or other Governmental Authority or (z) the compliance, application or implementation by any Lender with the foregoing subclauses (x) or (y) or any Existing Law (defined below), in each case made subsequent to the Restatement Effective Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded 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;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender which is not otherwise included in the determination of the applicable Euro-Rate; or
(iii) shall impose on such Lender any other condition; and the result of any of the foregoing is to increase the cost to such Lender of making, converting into, continuing or maintaining any Loans or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Agent, in accordance herewith, the Borrower shall be obligated to pay such Lender, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that (i) the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any Applicable Law (including any Existing Law), regarding capital adequacy or liquidity requirements, (ii) any request, guideline guidance or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, or (iii) the compliance, application or implementation by such Lender or its parent corporation of the foregoing clauses (i) or (ii) or any Existing Law has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital adequacy or liquidity requirements), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender, such additional amount or amounts as will compensate such Lender for such reduction. Each determination by any such Lender of amounts owing under this Section shall, absent manifest error, be conclusive and binding on the parties hereto. For the avoidance of doubt, an Applicable Law regarding capital adequacy or liquidity requirements shall include, but not be limited to, (i) the final rule titled “Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues,” adopted by the United States bank regulatory agencies on December 15, 2009 (the “FAS 166/167 Capital Guidelines”); (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (iii) the revised Basel Accord prepared by the Basel Committee on Banking Supervision as set out in the publication entitled “Basel II: International Convergence of Capital Measurements and Capital Standards: A Revised Framework,” as updated from time to time (“Basel II”); (iv) the publication entitled “Basel III: A global regulatory framework for more resilient banks and banking systems,” as updated from time to time (“Basel III”); or (v) any implementing rules, regulations, guidance, interpretations or directives from any official body relating to the FAS 166/167 Capital Guidelines, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, Basel II or Basel III (whether or not having the force of law and whether any such Applicable Law becomes effective before or not failure after the date hereof) (collectively, “Existing Law”).
(c) A certificate of each Lender setting forth such amount or amounts as shall be necessary to comply therewith would be unlawful) compensate such Lender or any change its holding company as specified in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which shall either subsection (a) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against the Loan, or (b) impose above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender the amount shown as due on any such certificate delivered by it within ten (10) days following presentation thereof.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its sole judgment, result in a request for increased compensation pursuant to this Section, such Lender shall notify the Borrower thereof. Failure on the Lender any other condition regarding the Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result part of any event referred Lender so to in clause (a), (b) or (c) above shall be to increase notify the cost to the Lender of making, funding or maintaining the Loan Borrower or to reduce the amount of demand compensation for any sum increased costs or reduction in amounts received or receivable by the Lender or the Lender’s rate of reduction in return on capital with respect to the Loan to any period shall not constitute a level below that which the Lender could have achieved but for waiver of such imposition, modification or deemed applicability (taking into consideration the Lender’s policies right to demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period. The protection of this Section shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Samples: Revolving Asset Based Loan Agreement (Andersons, Inc.)
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts or promulgates after the date hereof any Law, or any request, guideline or directive (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which shall either (a) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance or similar requirement against the Loan, or (b) impose on the Lender any other condition regarding the Loan, this Agreement, or the NoteNotes, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause (a), (b) or (c) above shall be to increase the cost to the Lender of making, funding or maintaining the Loan or to reduce the amount of any sum receivable by the Lender or the Lender’s 's rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s 's policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s 's written demand and the statement described in the following sentence, additional amounts which shall be sufficient to compensate the Lender for such increased cost or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s 's transfer of its interest in the Loan and the Note Notes to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s 's unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s 's loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s 's interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposes.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Samples: Loan and Security Agreement (Rw Holdings NNN Reit, Inc.)
Increased Costs and Reduced Return. The Borrower agrees If a Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. For purposes of returnthis Agreement, provided that (i) the Borrower Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, guidelines and directives 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 regulatory authorities, in each case pursuant to Basel III, shall in each case, be deemed to have no obligation to pay any such amount (x) been adopted and gone into effect after the date of this Agreement. All amounts payable under this Section shall bear interest from the date of demand by the Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law), in each case, occurring after the date hereof, shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Samples: Loan and Security Agreement (On Deck Capital, Inc.)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall Net Income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender such additional amounts as will compensate Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentenceor its agents, additional amounts which shall be sufficient to compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not Obligations. A certificate of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of claiming compensation under this Section, specifying the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be final, final and conclusive and binding on all parties for all purposesabsent manifest error.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other governmental authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law), in each case after the date hereof, shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase in any material respect the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate of returnreductions in amount. With respect to this Section 9.2, provided that the Lender shall treat Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the differently than Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender's reasons for invoking the provisions of this Section, and the same shall be finalfinal and conclusive absent manifest error. Failure or delay on the part of Lender to demand compensation pursuant to this Section shall not constitute a waiver of Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate Lender pursuant to this Section for any increased costs incurred more than 180 days prior to the date that Lender notifies Borrower of the change giving rise to such increased costs and of Lender’s intention to claim compensation therefor; provided further that, conclusive if the change giving [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and binding on all parties for all purposesfiled separately with the Securities and Exchange Commission. rise to such increased costs is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts or promulgates (a) If the Lender shall determine that, after the date hereof hereof, the adoption of any Lawapplicable law, rule or regulation, or any requestchange therein, guideline 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 the Issuer or the Lender or its parent corporation with any requirement or directive (whether or not having the force of law and whether law) of any such authority, central bank or not failure comparable agency:
(i) shall subject the Issuer or the Lender or its parent corporation to comply therewith would be unlawful) any tax, duty or other similar charge with respect to any Letter of Credit and/or the Computer Sales L/C, the Advances or the Note or shall change the basis of taxation of payments to the Issuer or the Lender or its parent corporation of the Reimbursement Obligation, of the principal of or interest on the Advances or of any other amounts due under this Agreement in respect of any Letter of Credit and/or the Computer Sales L/C, the Advances or the Note (except for any change in the interpretation or administration respect of any existing Law by any Governmental Authority charged with tax imposed on the administration thereof, which overall income of the Issuer or the Lender or its parent corporation); or
(ii) shall either (a) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System) against assets of, deposits with or for the Loanaccount of, or (b) credit extended by, the Issuer or the Lender or its parent corporation or shall impose on the Issuer or the Lender or its parent corporation any other condition regarding affecting any Letter of Credit and/or the LoanComputer Sales L/C, this Agreement, the Advances or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender ; and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the Issuer or the Lender or its parent corporation of making, funding issuing or maintaining any Letter of Credit and/or the Loan Computer Sales L/C or of making or maintaining any Advances, or to reduce the amount of any sum received or receivable by the Issuer or the Lender or its parent corporation under the application and agreement pursuant to which the Letter of Credit and/or the Computer Sales L/C was issued, this Agreement or the Note with respect thereto, by an amount deemed by the Lender or its parent corporation to be material, then upon demand by the Lender’s , the Borrower shall pay to the Lender such additional amount or amounts as will compensate the Issuer or the Lender or its parent corporation for such increased cost or reduction.
(b) If the Lender shall determine 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 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 Lender or its parent corporation with any guideline or request issued after the date hereof regarding capital adequacy (whether nor 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 Lender's or the Lender's parent corporation's capital with respect to as a consequence of any Letters of Credit, the Loan Computer Sales L/C, Advances or the Lender's obligations hereunder to a level below that which the Lender or its parent corporation could have achieved but for such impositionadoption, modification change or deemed applicability compliance (taking into consideration the Lender’s 's policies with respect to capital adequacyadequacy and those of the Lender's parent corporation) by an amount deemed by to the Lender (in the exercise of or its reasonable discretion) parent corporation to be material, then, upon then from time to time on demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amount or amounts which shall be sufficient to as will compensate the Lender or its parent corporation for such increased cost or reduced rate reduction.
(c) Certificates of return, provided that the Lender sent to the Borrower shall have no obligation from time to pay any such amount (x) to time claiming compensation under this Section, stating the extent that such increased cost or reduction reason therefor and setting forth in rate of return on capital is a result of any one or more reasonable detail the calculation of the following: (1) the Lender’s transfer of its interest in the Loan and the Note additional amount or amounts to another lending office, (2) circumstances applicable be paid to the Lender but not of general application to other similar lendershereunder shall be conclusive absent manifest error. In determining such amounts, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by its parent corporation may use any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation reasonable averaging and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesattribution methods.
Appears in 1 contract
Samples: Credit and Security Agreement (Sportsmans Guide Inc)
Increased Costs and Reduced Return. The Borrower agrees If Lender shall have determined that if any Governmental Authority enacts the adoption or promulgates after the date hereof any Lawimplementation of, or any requestchange in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or governmental authority, or compliance by Lender with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Lender (whether or not having the force of law and whether law) shall (i) subject the Lender to any tax, duty or not failure other charge with respect to comply therewith would be unlawful) this Agreement or any Loan made hereunder, or change in the interpretation or administration basis of taxation of payments to Lender of any existing Law by any Governmental Authority charged with amounts payable hereunder (except for taxes on the administration thereofoverall net income of Lender), which shall either (aii) impose, affect, modify or deem applicable any reserve, special deposit, capital maintenance deposit or similar requirement against the any Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, Lender, or (biii) impose on the Lender any other condition regarding the this Agreement or any Loan, this Agreement, or the Note, or (c) result in any requirement regarding capital adequacy (including any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender and the result of any event referred to in clause clauses (ai), (bii) or (ciii) above shall be to increase the cost to the Lender of makingmaking any Loan, funding or maintaining the agreeing to make any Loan or to reduce the any amount of any sum received or receivable by the Lender or the Lender’s rate of return on capital with respect to the Loan to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies with respect to capital adequacy) by an amount deemed by the Lender (in the exercise of its reasonable discretion) to be material, then, upon demand by the Lender in writingLender, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt of the Lender’s written demand and the statement described in the following sentence, Lender such additional amounts which shall be sufficient to as will compensate the Lender for such increased cost costs or reduced rate reductions in amount. All amounts payable under this Section shall bear interest from the date of return, provided that demand by the Borrower shall have no obligation to pay any such amount (x) Lender until payment in full to the extent that such increased cost or reduction in Lender at the highest interest rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Obligations. With respect to this Section 9.2, Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the shall treat Borrower no differently than Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than treats other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount Borrowers. A certificate of the increased cost or reduction in rate of return on capital exceeds Lender claiming compensation under this Section, specifying the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation event herein above described and the method for, and reasonable calculations for, determining the amount thereof, nature of such event shall be submitted by the Lender to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and the Lender’s reasons for invoking the provisions of this Section, and the same shall be finalfinal and conclusive absent manifest error. The Borrowers shall pay Lender, conclusive and binding the amount shown as due on all parties for all purposesany such certificate within 10 Business Days after receipt of such certificate.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after the date hereof hereof, the adoption of or any Lawchange in any applicable Law or in the interpretation or application thereof applicable to any Lender (or its Applicable Lending Office), or compliance by any request, guideline Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law Law) from any central bank or other Governmental Authority, in each case made subsequent to the Effective Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender (or its Applicable Lending Office) to any tax of any kind whatsoever with respect to any Letter of Credit, any Eurodollar Loans made by it or any of its Notes or its obligation to make Eurodollar Loans or to participate in Letters of Credit, or change the basis of taxation of payments to such Lender (or its Applicable Lending Office) in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by Section 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would be unlawfulwith its obligations under Section 3.01(d)) or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration thereof, which and (B) Excluded Taxes);
(ii) shall either (a) impose, affect, modify or deem hold applicable any reserve, special deposit, capital maintenance compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the Loanaccount of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (bor its Applicable Lending Office) which is not otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on the such Lender (or its Applicable Lending Office) any other condition regarding the Loan, this Agreement, or the Note, or (c) result in excluding any requirement regarding capital adequacy (including tax of any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender kind whatsoever); and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the such Lender (or its Applicable Lending Office) of making, funding converting into, continuing or maintaining the Loan any Eurodollar Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to pay such Lender, within 10 Business Days of its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable Law regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any sum receivable such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or parent corporation’s) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s (or parent corporation’s) policies with respect to capital adequacy), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction; provided, that the Borrower shall not required to compensate any Lender pursuant to subsection (a) above or this subsection (b) for any additional costs or reductions suffered more than 180 days prior to the date such Lender notifies the Borrower of the circumstances giving rise to such additional costs or reductions and of such Lender’s intentions to claim compensation therefor, and provided, further, that, if the Change in Law or in the interpretation or administration thereof giving rise to such additional costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. Each determination by any such Lender of amounts owing under this Section 3.04 shall, absent manifest error, be conclusive and binding on the parties hereto.
(c) A certificate in reasonable detail of each Lender setting forth such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in subsection (a) or (b) above, as the case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender or the Lender’s rate Issuing Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its reasonable judgment, result in a request for increased compensation pursuant to this Section 3.04, such Lender shall notify the Borrower thereof. Failure on the part of any Lender 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 the Loan to any period shall not constitute a level below that which the Lender could have achieved but for waiver of such imposition, modification or deemed applicability (taking into consideration the Lender’s policies right to demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period, except as expressly otherwise provided above. The protection of this Section 3.04 shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Increased Costs and Reduced Return. The Borrower agrees that if any Governmental Authority enacts (a) If on or promulgates after (x) the date hereof hereof, in the case of any LawCommitted Loan or any obligation to make Committed Loans or (y) the date of any related Competitive Bid, the adoption of or any change in any applicable Law or in the interpretation or application thereof applicable to any Lender (or its Applicable Lending Office), or compliance by any request, guideline Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law Law) from any central bank or other Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending Office) to any tax of any kind whatsoever with respect to any Eurodollar Loans made by it or any of its Notes or its obligation to make Eurodollar Loans, or change the basis of taxation of payments to such Lender (or its Applicable Lending Office) in respect thereof (except for (A) Taxes and whether or not Other Taxes covered by SECTION 3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply therewith would be unlawfulwith its obligations under SECTION 3.01(d)) and (B) changes in taxes measured by or imposed upon the overall net income, or franchise tax (imposed in lieu of such net income tax), of such Lender or its Applicable Lending Office, branch or any change in the interpretation or administration of any existing Law by any Governmental Authority charged with the administration affiliate thereof, which ));
(ii) shall either (a) impose, affect, modify or deem hold applicable any reserve, special deposit, capital maintenance compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the Loanaccount of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (bor its Applicable Lending Office) which is not otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on the such Lender (or its Applicable Lending Office) any other condition regarding the Loan, this Agreement, or the Note, or (c) result in excluding any requirement regarding capital adequacy (including tax of any risk-based capital guidelines) affecting the Lender being imposed or modified or deemed applicable to the Lender kind whatsoever); and the result of any event referred to in clause (a), (b) or (c) above shall be of the foregoing is to increase the cost to the such Lender (or its Applicable Lending Office) of making, funding converting into, continuing or maintaining the Loan any Fixed Rate Loans or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be obligated to promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption or the becoming effective of, or any change in, or any change by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof in the interpretation or administration of, any applicable Law, regarding capital adequacy, or compliance by such Lender, or its parent corporation, with any request or directive regarding capital adequacy (whether or not having the force of Law) of any sum receivable such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's (or parent corporation's) capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Lender, or its parent corporation, could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's (or parent corporation's) policies with respect to capital adequacy), then, upon notice from such Lender to the Borrower, the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender on an after-tax basis (after taking into account applicable deductions and credits in respect of the amount indemnified) for such reduction. Each determination by any such Lender of amounts owing under this SECTION 3.04 shall, absent manifest error, be conclusive and binding on the parties hereto; PROVIDED, that the Borrower shall not be required to compensate any Lender pursuant to SUBSECTION (a) above or this SUBSECTION (b) for any additional costs or reductions suffered more than 180 days prior to the date such Lender notifies the Borrower of the circumstances giving rise to such additional costs or reductions and of such Lender's intentions to claim compensation therefor, and PROVIDED FURTHER that, if the change in Law or in the interpretation or administration thereof giving rise to such additional costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(c) A certificate of each Lender setting forth such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in SUBSECTION (a) or (b) above, as the Lender’s rate case may be, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender the amount shown as due on any such certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that will, in its sole judgment, result in a request for increased compensation pursuant to this SECTION 3.04, such Lender shall notify the Borrower thereof. Failure on the part of any Lender 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 the Loan any period shall not constitute a waiver of such Lender's right to a level below that which the Lender could have achieved but for such imposition, modification or deemed applicability (taking into consideration the Lender’s policies demand compensation with respect to capital adequacy) by an amount deemed by the such period or any other period. The protection of this SECTION 3.04 shall be available to each Lender (in the exercise regardless of its reasonable discretion) to be material, then, upon demand by the Lender in writing, the Borrower shall pay to the Lender, within ten (10) Business Days after receipt any possible contention of the Lender’s written demand and invalidity or inapplicability of the statement described in the following sentencelaw, additional amounts rule, regulation, guideline or other change or condition which shall be sufficient to compensate the Lender for such increased cost have occurred or reduced rate of return, provided that the Borrower shall have no obligation to pay any such amount (x) to the extent that such increased cost or reduction in rate of return on capital is a result of any one or more of the following: (1) the Lender’s transfer of its interest in the Loan and the Note to another lending office, (2) circumstances applicable to the Lender but not of general application to other similar lenders, (3) a downgrade in the credit rating accorded the Lender (or an Affiliate of the Lender) by any credit rating agency, or (4) the Lender’s unreasonably treating the Loan less favorably than other similarly situated loans in the Lender’s loan portfolio, or (y) except after an Event of Default shall have occurred, in the case of any Person that becomes a Lender after the date hereof, to the extent that the amount of the increased cost or reduction in rate of return on capital exceeds the amount of the increased cost or reduction in rate of return on capital that would have been suffered by the Initial Lender if the Initial Lender owned such Person’s interest in the Loan. In the absence of manifest error, a statement setting forth the basis for requesting such compensation and the method for, and reasonable calculations for, determining the amount thereof, submitted by the Lender to the Borrower, shall be final, conclusive and binding on all parties for all purposesimposed.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Worthington Industries Inc)
