Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 7 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify ~~CFKK~~ CFC and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy ~~or liquidity~~ promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 7 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or ~~TIBO Rate~~ RFR Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office or RFR Lending Office to perform its obligations hereunder to make Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, ~~TIBO Rate~~ RFR Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be ~~redenominated~~ Redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of ~~TIBO Rate Advances~~RFR Advances denominated in Japanese Yen, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a~~) or Section 2.03(a~~), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency ~~Rate or TIBO~~ Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances, RFR Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances or RFR Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed ~~Conversion,~~ Conversion Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances or Daily Simple RFR for the RFR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances or RFR Advances for such Revolving Credit ~~Borrowing,~~ Borrowing or Local Currency ~~Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, (2) each such outstanding RFR Advance will automatically, on the day such notice is delivered, Convert into, and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (23) the right of the requesting Borrower to select the Eurocurrency Rate or RFR for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances or RFR Advances, or to select the Eurocurrency Rate or RFR for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that ~~the TIBO Rate~~ TONAR for ~~TIBO Rate~~ TONAR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective ~~TIBO Rate~~ TONAR Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding ~~TIBO Rate~~ TONAR Advance will automatically, on the ~~last~~ day ~~of the then existing Interest Period therefor~~such notice is delivered, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select ~~the TIBO Rate~~ TONAR for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, ~~TIBO Rate~~ TONAR Advances, or select ~~the TIBO Rate~~ TONAR for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 5 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a~~) or Section 2.03(a~~), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing,~~ Borrowing or Local Currency ~~Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as)CFKK, and ~~with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2)~~ the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 4 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a~~) or Section 2.03(a~~), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing,~~ Borrowing or Local Currency ~~Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as)CFC, and ~~with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2)~~ the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy ~~or liquidity~~ promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 4 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate ~~Advances or TIBO Rate~~ Advances, then the ~~applicable Borrower~~ Borrowers shall from time to time, upon written demand by such Bank (with a copy of such demand to the Administrative Agent), be jointly and severally obligated to pay to the Administrative Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Administrative Agent by such Bank, shall create a rebuttable presumption of such increased cost. ~~If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation~~ Compensation for such increased cost shall be paid jointly and severally by ~~such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar~~the Borrowers. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Administrative Agent), the ~~applicable Borrower~~ Borrowers shall be jointly and severally obligated to immediately pay to the Administrative Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the ~~applicable Borrower~~ Borrowers by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation Compensation for such increased capital ~~or liquidity requirement~~ shall be paid jointly and severally by ~~Caterpillar~~the Borrowers. (c) If any Bank shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances or to fund or maintain ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances hereunder, (i) all ~~Local Currency Advances, TIBO Rate Advances and~~ Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate ~~(or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate)~~ for the Interest Period selected by ~~such Borrower~~ Borrowers in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate ~~or TIBO Rate~~ to a later day during such Interest Period, on such later day (in which case ~~such Borrower~~ the Borrowers shall ~~in addition~~ be jointly and severally obligated to reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Administrative Agent that the circumstances causing such suspension no longer exist, and until such notification has been ~~given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances~~given, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and~~ Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance~~, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances~~. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one ~~(1)~~ Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit ~~Borrowing,~~ Borrowing or Term Loan ~~Borrowing or Local Currency Borrowing (or on the date of such Local Currency~~ Borrowing~~, in the case of a Same Day Local Currency Borrowing)~~, notify the Administrative Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing, Local Currency~~ Borrowing or Term Loan Borrowing, the Administrative Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the ~~requesting Borrower~~ Borrowers to select the Eurocurrency Rate for such Borrowing, and the right of ~~any Borrower~~ the Borrowers to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Administrative Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from ~~any Borrower~~ the Borrowers at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Administrative Agent (the consent of the Administrative Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Administrative Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Administrative Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the ~~applicable Borrower or~~ Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 3 contracts

Samples: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall ~~create a rebuttable presumption of such amounts~~be conclusive and binding for all purposes, absent manifest error. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all ~~Local Currency Advances,~~ TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section ~~2.03(a~~2.03A(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of ~~Local Currency Advances or~~ Eurocurrency Rate Advances, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and~~ Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit Borrowing~~, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing)~~, notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably ~~withheld or delayed~~withheld); provided that (i) no Event of Default has occurred and is continuing at such ~~time,~~ time and (ii) ~~in the case of clause (2),~~ the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder~~, and (iii) the Affected Bank has been paid all amounts due to it hereunder~~. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon ~~written~~ demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall ~~create a rebuttable presumption of such increased cost~~be conclusive and binding for all purposes, absent manifest error. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon ~~written~~ demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall ~~create a rebuttable presumption of such amounts~~be conclusive and binding for all purposes, absent manifest error. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks~~, as applicable~~) shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or ~~such~~ the Majority Local Currency Banks~~, as applicable~~) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing or Local Currency Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably ~~withheld or delayed~~withheld); provided that (i) no Event of Default has occurred and is continuing at such ~~time,~~ time and (ii) ~~in the case of clause (2),~~ the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder~~, and (iii) the Affected Bank has been paid all amounts due to it hereunder~~. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a~~) or Section 2.03(a~~), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing,~~ Borrowing or Local Currency ~~Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as)CFC, and ~~with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2)~~ the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all ~~Local Currency Advances,~~ TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section ~~2.03(a~~2.03A(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of ~~Local Currency Advances or~~ Eurocurrency Rate Advances, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and~~ Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit Borrowing~~, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing)~~, notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as)CFC, and ~~with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2)~~ the right of ~~CFKK~~ CFC to select the TIBO Rate for such ~~Borrowing,~~ Borrowing and the right of ~~CFKK~~ CFC to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of ~~Eurocurrency~~ EURIBOR Rate Advances, to the extent already included in the ~~Eurocurrency~~ EURIBOR Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining ~~Eurocurrency~~ Term SOFR Advances, XXXXXXX Rate Advances or ~~TIBO Rate~~ RFR Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (ba) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. ~~(a)~~ If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of ~~Eurocurrency~~ EURIBOR Rate Advances, to the extent already included in the ~~Eurocurrency~~ EURIBOR Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining ~~Eurocurrency~~ Term SOFR Advances, XXXXXXX Rate Advances or ~~TIBO Rate~~ RFR Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a~~) or Section 2.03(a~~), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing,~~ Borrowing or Local Currency ~~Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as)CFC, and ~~with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2)~~ the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. ~~(a) If, due to~~ a. If either (i) the introduction of or any change (~~other than~~ including any change by way of imposition or increase of reserve requirements~~, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage~~) in or in the interpretation of any ~~law or regulation~~ Applicable Law or (ii) the compliance by the Administrative Agent or any Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), ~~there~~ shall be (a) subject the Administrative Agent or any ~~increase in the cost~~ Lender to any ~~Bank~~ Tax or increased Tax of ~~agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank~~ any kind whatsoever (~~with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that~~ other than (xA) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities Indemnified Taxes and (~~to the extent such Bank has the right under such similar credit facilities to do so~~B) Excluded Taxes) with respect to ~~such~~ this Agreement or change ~~regarding such increased cost and (y) such additional amounts shall not be duplicative~~ the basis of ~~any amounts~~ taxation of payments to the ~~extent otherwise paid~~ Lender in respect thereof with respect to its interest in the Collateral, or any right or obligation to make Loan Advances hereunder, or on any payment made hereunder, (b) impose, modify or deem applicable any reserve requirement (including any reserve requirement imposed by the ~~applicable Borrower~~ Board of Governors of the Federal Reserve System, but excluding any reserve requirement, if any, included in the determination of Interest), special deposit or similar requirement against assets of, deposits with or for the amount of, or credit extended by, any Lender or (c) impose any other condition affecting the ownership interest in the Collateral conveyed to the Secured Parties hereunder or the Administrative Agent’s or any Xxxxxx’s rights hereunder or under any other ~~provision~~ Transaction Document, the result of ~~this Agreement (including, without limitation,~~ which is to increase the cost to the Administrative Agent or any ~~reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail~~ Lender or to reduce the amount of ~~such increased cost, submitted to~~ any sum received or receivable by the ~~Borrowers and the~~ Administrative Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any ~~guideline~~ Lender under this Agreement or ~~request from~~ under any ~~central bank~~ other Transaction Document, and in each case the Administrative Agent or ~~other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by~~ such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with Lender has made a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar ~~credit facilities (to the extent such Bank has the right under such similar credit facilities to do so)~~ determination with respect to other facilities similarly situated other than for the reason of identifiable legal differences between such ~~change regarding~~ facilities, then on the Payment Date following demand by the Administrative Agent or such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand), and in any case the Borrower shall pay directly to the Administrative Agent or such Lender such additional amount or amounts as will compensate the Administrative Agent or such Lender for such additional or increased cost ~~and (y)~~ incurred or such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillarreduction suffered. b. If either (ci) ~~If any Bank shall notify the Agent that~~ the introduction of or any change in or in the interpretation of any ~~law~~ law, guideline, rule, regulation, directive or ~~regulation makes it unlawful~~request or (ii) compliance by the Administrative Agent or any Lender with any law, guideline, rule, regulation, directive or ~~that~~ request from any central bank or other Governmental Authority ~~asserts that it is unlawful~~or agency (whether or not having the force of law), ~~for such Bank~~ including compliance by the Administrative Agent or ~~its Eurocurrency Lending Office to perform~~ any Lender with any request or directive regarding capital adequacy has or would have the effect of reducing the rate of return on the capital of the Administrative Agent or any Lender as a consequence of its obligations hereunder or arising in connection herewith to ~~make Local Currency Advances~~a level below that which the Administrative Agent or any such Lender could have achieved but for such introduction, ~~TIBO Rate Advances~~ change or ~~Eurocurrency Rate Advances~~ compliance (taking into consideration the policies of the Administrative Agent or such Lender with respect to ~~fund~~ capital adequacy) by an amount deemed by the Administrative Agent or ~~maintain Local Currency Advances~~such Lender to be material, ~~TIBO Rate Advances~~ and in each case the Administrative Agent or ~~Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of~~ such ~~Bank~~ Lender has made a similar determination with respect to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) other facilities similarly situated other than for the ~~Interest Period selected by~~ reason of identifiable legal differences between such ~~Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a)~~facilities, ~~notwithstanding any prior election by such Borrower~~ then from time to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automaticallytime, on the ~~last day of~~ Payment Date following demand by the ~~then existing Interest Period therefor, Convert into~~ Administrative Agent or such Lender (~~or if~~ which demand shall be accompanied by a statement setting forth the basis for such ~~Advance is then a Base Rate Advance, shall continue as~~demand), ~~and with respect~~ the Borrower shall pay directly to ~~a requested Advance~~ the Administrative Agent or such Lender such additional amount or amounts as ~~part of a requested Borrowing,~~ will compensate the Administrative Agent or such ~~Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate~~ Lender for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed)reduction; provided that ~~(i) no Event of Default has occurred and is continuing at such time, (ii)~~ notwithstanding anything in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section ~~2.10 and, if applicable, Section 8.04(b). (g~~2.12(b) ~~Notwithstanding anything herein~~ to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives ~~relating to capital adequacy or liquidity~~ promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “change in ~~law and be eligible~~ law” for ~~redress pursuant to~~ the purposes of clause (~~a), (b~~i) ~~and (c), as applicable, of this Section 2.10~~above, regardless of the date enacted, adopted or issued. If the issuance of any amendment or supplement to Interpretation No. 46 or to Statement of Financial Accounting Standards No. 140 by the Financial Accounting Standards Board or any other change in accounting standards, including GAAP, or the issuance of any other pronouncement, release or interpretation, causes or requires the consolidation of all or a portion of the assets and liabilities of the Transferor, the Borrower or any Secured Party with the assets and liabilities of the Administrative Agent or any Lender or shall otherwise impose any loss, cost, expense, reduction of return on capital or other loss, such event shall constitute a circumstance on which the Administrative Agent or such Lender may base a claim for reimbursement under this Section 2.12. c. If as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.12, the Administrative Agent or any Lender is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to the Administrative Agent or such Lender in connection with this Agreement or the funding or maintenance of Loan Advances hereunder (under other facilities similarly situated other than for the reason of identifiable legal differences between such facilities), then within twenty-two (22) days after demand by the Administrative Agent or such Lender, the Borrower shall pay to the Administrative Agent or such Lender such additional amount or amounts as may be necessary to reimburse the Administrative Agent or such Lender for any amounts payable or paid by it. d. In determining any amount provided for in this Section 2.12, the Administrative Agent or any applicable Lender may use any reasonable averaging and attribution methods. The Administrative Agent or any Lender making a claim under this Section 2.12 shall submit to the Collateral Manager a written description as to such additional or increased cost or reduction and the calculation thereof, which written description shall be conclusive absent manifest error. e. If a Disruption Event with respect to any Lender occurred, such Lender shall in turn so notify the Borrower, whereupon all Advances Outstanding of the affected Lender in respect of which Interest accrues at the Benchmark shall immediately be converted into Advances Outstanding in respect of which Interest accrues at the Base Rate. f. Failure or delay on the part of the Administrative Agent or any Lender to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of the Administrative Agent’s or such Xxxxxx’s right to demand or receive such compensation. Notwithstanding anything to the contrary in this Section 2.12, the Borrower shall not be required to compensate the Administrative Agent or any Lender pursuant to this Section 2.12 for any amounts incurred more than six (6) months prior to the date that the Administrative Agent or such Lender notifies the Borrower of the Administrative Agent’s or such Xxxxxx’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such six (6) month period shall be extended to include the period of such retroactive effect. g. Each Lender agrees that it will take such commercially reasonable actions as the Borrower may reasonably request that will avoid the need to pay, or reduce the amount of, any increased amounts referred to in this Section 2.12 or Section 2.13; provided that no Lender shall be obligated to take any actions that would, in the reasonable opinion of such Lender, be disadvantageous to such Lender. In no event will the Borrower be responsible for increased amounts referred to in this Section 2.12 which relates to any other entities to which any Lender provides financing. h. The payment of amounts under this Section 2.12 shall be on an after-Tax basis. i. Other than with respect to a Benchmark Transition Event (for which reference is made to Section 12.18), if the Administrative Agent reasonably determines (which determination shall be conclusive and binding absent manifest error) that “Daily Simple SOFR” cannot be determined pursuant to the definition thereof, the Administrative Agent will promptly so notify the Borrower and each Lender. Upon notice thereof by the Administrative Agent to the Borrower, all Loan Advances shall bear interest at the Base Rate in lieu of Daily Simple SOFR, computed as otherwise described herein until the Administrative Agent revokes such notice. Upon receipt of such notice (and until such notice is revoked by the Administrative Agent in writing to the Borrower), all Advances Outstanding shall bear interest at the Base Rate. j. If any Lender determines that any applicable law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loan Advances whose interest is determined by reference to Daily Simple SOFR, or to determine to charge interest rates based upon Daily Simple SOFR, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), any obligation of such Lender to make or continue Loan Advances that bear interest at Daily Simple SOFR, shall be suspended until such Xxxxxx notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay (pursuant to Section 2.3(a)) or, if applicable, convert all Loan Advances that bear interest at Daily Simple SOFR, of such Lender to Loan Advances that bear interest at the Base Rate, on the Payment Date therefor, if such Lender may lawfully continue to maintain such Loan Advances that bear interest at Daily Simple SOFR, to such day, or immediately, if such Lender may not lawfully continue to maintain such Loan Advances that bear interest at Daily Simple SOFR.

Appears in 2 contracts

Samples: Loan, Security and Collateral Management Agreement (AG Twin Brook Capital Income Fund), Loan, Security and Collateral Management Agreement (AGTB Private BDC)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all ~~Local Currency Advances,~~ TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of ~~Local Currency Advances or~~ Eurocurrency Rate Advances, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and~~ Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one ~~(1)~~ Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit ~~Borrowing,~~ Borrowing or Term Loan ~~Borrowing or Local Currency Borrowing (or on the date of such Local Currency~~ Borrowing~~, in the case of a Same Day Local Currency Borrowing)~~, notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing, Local Currency~~ Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one ~~(1)~~ Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify ~~CFKK~~ CFC and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably ~~withheld or delayed~~withheld); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or ~~TIBO Rate~~ RFR Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office or RFR Lending Office to perform its obligations hereunder to make Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, ~~TIBO Rate~~ RFR Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be ~~redenominated~~ Redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of ~~TIBO Rate Advances~~RFR Advances denominated in Japanese Yen, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate ~~or TIBO Rate~~ to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances, RFR Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances or RFR Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances or Daily Simple RFR for the RFR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances or RFR Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, (2) each such outstanding RFR Advance will automatically, on the day such notice is delivered, Convert into, and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (23) the right of the requesting Borrower to select the Eurocurrency Rate or RFR for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances or RFR Advances, or to select the Eurocurrency Rate or RFR for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify ~~CFKK~~ CFC and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon ~~written~~ demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall ~~create a rebuttable presumption of such increased cost~~be conclusive and binding for all purposes, absent manifest error. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon ~~written~~ demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall ~~create a rebuttable presumption of such amounts~~be conclusive and binding for all purposes, absent manifest error. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all ~~Local Currency Advances,~~ TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section ~~2.03(a~~2.03A(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of ~~Local Currency Advances or~~ Eurocurrency Rate Advances, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and~~ Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit Borrowing~~, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing)~~, notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably ~~withheld or delayed~~withheld); provided that (i) no Event of Default has occurred and is continuing at such ~~time,~~ time and (ii) ~~in the case of clause (2),~~ the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder~~, and (iii) the Affected Bank has been paid all amounts due to it hereunder~~. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon ~~written~~ demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall ~~create a rebuttable presumption of such increased cost~~be conclusive and binding for all purposes, absent manifest error. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon ~~written~~ demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall ~~create a rebuttable presumption of such amounts~~be conclusive and binding for all purposes, absent manifest error. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be ~~redenominated~~ converted into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks~~, as applicable~~) shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or ~~such~~ the Majority Local Currency Banks~~, as applicable~~) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing or Local Currency Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion or continuation of the Advances comprising all or part~~ of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to ~~Convert Advances into, or continue Advances as, TIBO Rate Advances, or~~ select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably ~~withheld or delayed~~withheld); provided that (i) no Event of Default has occurred and is continuing at such ~~time,~~ time and (ii) ~~in the case of clause (2),~~ the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder~~, and (iii) the Affected Bank has been paid all amounts due to it hereunder~~. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify ~~CFKK~~ CFC and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency ~~Rate Advances or TIBO~~ Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such ~~Borrower (or if such Borrower is CIF or CFKK, by CFSC)~~Borrower. In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such ~~Borrower (or if such Borrower is CIF or CFKK, by CFSC)~~Borrower. In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances or to fund or maintain ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances hereunder, (i) all ~~Local Currency Advances, TIBO Rate Advances and~~ Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate ~~(or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate)~~ for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate ~~or TIBO Rate~~ to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been ~~given (i)~~ given, in the case of ~~Local Currency Advances or~~ Eurocurrency Rate Advances, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and~~ Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance~~, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances~~. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one (1) Business Day before the requested date of, or the proposed ~~Conversion, Redenomination~~ Conversion or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing~~, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing)~~, notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing, Local Currency Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance.[Intentionally Omitted] (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital ~~or liquidity requirement~~ is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital ~~or liquidity requirement~~ shall be paid by such Borrower (or if such Borrower is ~~CIF or CFKK~~CFC, by CFSC). In all other cases, compensation for such increased capital ~~or liquidity requirement~~ shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all ~~Local Currency Advances,~~ TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances,~~ TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of ~~Local Currency Advances or~~ Eurocurrency Rate Advances, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and~~ Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one ~~(1)~~ Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit ~~Borrowing,~~ Borrowing or Term Loan ~~Borrowing or Local Currency Borrowing (or on the date of such Local Currency~~ Borrowing~~, in the case of a Same Day Local Currency Borrowing)~~, notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing, Local Currency~~ Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one ~~(1)~~ Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify ~~CFKK~~ CFC and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of ~~CFKK~~ CFC to select the TIBO Rate for such Borrowing, and the right of ~~CFKK~~ CFC to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably ~~withheld or delayed~~withheld); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of ~~Eurocurrency~~ EURIBOR Rate Advances, to the extent already included in the ~~Eurocurrency~~ EURIBOR Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining ~~Eurocurrency Rate~~ Term SOFR Advances, XXXXXXX Xxxx Advances or ~~TIBO Rate~~ RFR Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Euro Lending Office or RFR Lending Office to perform its obligations hereunder to make Local Currency Advances, ~~TIBO~~ RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances or to fund or maintain Local Currency Advances, ~~TIBO Rate~~ RFR Advances, Term SOFR Advances or ~~Eurocurrency~~ EURIBOR Rate Advances hereunder, (i) all Local Currency Advances, ~~TIBO~~ RFR Advances, XXXXXXX Rate Advances and ~~Eurocurrency Rate~~ Term SOFR Advances of such Bank to any Borrower then outstanding shall be ~~redenominated~~ Redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of ~~TIBO Rate Advances~~RFR Advances denominated in Japanese Yen, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such 39 Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable ~~Eurocurrency~~ EURIBOR Rate or ~~TIBO Rate~~ Term SOFR to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, ~~TIBO~~ RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances, RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of ~~Eurocurrency~~ EURIBOR Rate Advances, Term SOFR Advances or RFR Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that Term SOFR for Term SOFR Advances, the ~~Eurocurrency~~ EURIBOR Rate for ~~Eurocurrency~~ EURIBOR Rate Advances, or Daily Simple RFR for the RFR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective ~~Eurocurrency~~ Term SOFR Advances, EURIBOR Rate Advances or RFR Advances for such Revolving Credit ~~Borrowing,~~ Borrowing or Local Currency ~~Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding ~~Eurocurrency~~ Term SOFR Advance or EURIBOR Rate ~~Advance~~ Advance, as applicable, will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, (2) each such outstanding RFR Advance will automatically, on the day such notice is delivered, Convert into, and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (23) the right of the requesting Borrower to select Term SOFR, the ~~Eurocurrency~~ EURIBOR Rate or RFR for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, ~~Eurocurrency~~ Term SOFR Advances, XXXXXXX Rate Advances or RFR Advances, or to select Term SOFR, the ~~Eurocurrency~~ EURIBOR Rate or RFR for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that ~~the TIBO Rate~~ TONAR for ~~TIBO Rate~~ TONAR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective ~~TIBO Rate~~ TONAR Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding ~~TIBO Rate~~ TONAR Advance will automatically, on the ~~last~~ day ~~of the then existing Interest Period therefor~~such notice is delivered, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select ~~the TIBO Rate~~ TONAR for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, ~~TIBO Rate~~ TONAR Advances, or select ~~the TIBO Rate~~ TONAR for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension 40 no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 2 contracts

Samples: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) ~~If, due to~~ If either (i) the introduction of or any change (~~other than~~ including any change by way of imposition or increase of reserve requirements~~, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage~~) in or in the interpretation of any ~~law or regulation~~ Requirements of Law or (ii) the compliance by the Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), ~~there~~ shall ~~be any increase in~~ (a) subject the ~~cost~~ Lender to any ~~Bank of agreeing~~ Tax (except for any Taxes as to ~~make~~ which an Additional Amount is payable or ~~making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time~~ expressly not payable pursuant to ~~time, upon written demand by such Bank (with a copy of such demand to the Agent~~Section 8.4(a), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to ~~such change regarding such increased cost and~~ any Loan hereunder, or any right or obligation to make Loans hereunder, or on any payment made hereunder, (yb) ~~such additional amounts shall not be duplicative of~~ impose, modify or deem applicable any ~~amounts to the extent otherwise paid~~ reserve requirement (including any reserve requirement imposed by the ~~applicable Borrower~~ Board of Governors of the Federal Reserve System, but excluding any reserve requirement, if any, included in the determination of Interest), special deposit or similar requirement against assets of, deposits with or for the amount of, or credit extended by, the Lender or (c) impose any other condition affecting any Loan or the Lender’s rights hereunder or under any other ~~provision~~ Transaction Document, the result of ~~this Agreement (including, without limitation, any reserve requirements included in determining~~ which is to increase the ~~Eurocurrency Rate). A certificate describing in reasonable detail~~ cost to the Lender or to reduce the amount of any sum received or receivable by the Lender under this Agreement, under any other Transaction Document, then on the Payment Date in the calendar month following the calendar month during which the Lender demands payment (which demand shall be accompanied by a statement setting forth the basis for such ~~increased cost~~demand and a reasonably estimated calculation of such demand), ~~submitted~~ the Borrowers shall pay directly to the ~~Borrowers and~~ Lender such additional amount or amounts as will compensate the ~~Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation~~ Lender for such additional or increased cost ~~shall be paid by~~ incurred or such ~~Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar~~reduction suffered. (b) If ~~any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority~~ either (~~whether or not having the force of law~~i) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any ~~law~~ law, guideline, rule, regulation, directive or ~~regulation makes it unlawful~~request or (ii) compliance by the Lender with any law, guideline, rule, regulation, directive or ~~that~~ request from any central bank or other ~~Governmental Authority asserts that it is unlawful~~governmental authority or agency (whether or not having the force of law), ~~for such Bank~~ including compliance by the Lender with any request or ~~its Eurocurrency Lending Office~~ directive regarding capital adequacy (including the transition to ~~perform~~ and implementation of the Basel III capital adequacy guidelines), but, in each case, excluding Taxes, has or would have the effect of reducing the rate of return on the capital of the Lender as a consequence of its obligations hereunder or arising in connection herewith to ~~make Local Currency Advances~~a level below that which the Lender could have achieved but for such introduction, ~~TIBO Rate Advances~~ change or ~~Eurocurrency Rate Advances or~~ compliance (taking into consideration the policies of the Lender with respect to ~~fund or maintain Local Currency Advances~~capital adequacy) by an amount deemed by the Lender to be material, ~~TIBO Rate Advances or Eurocurrency Rate Advances hereunder~~then from time to time, on the Payment Date in the calendar month following the calendar month during which the Lender demands payment (~~i) all Local Currency Advances, TIBO Rate Advances~~ which demand shall be accompanied by a statement setting forth the basis for such demand and ~~Eurocurrency Rate Advances~~ a reasonably estimated calculation of such ~~Bank~~ demand), the Borrowers shall pay directly to the Lender such additional amount or amounts as will compensate the Lender for such reduction. For the avoidance of doubt, if the issuance of any ~~Borrower then outstanding~~ amendment or supplement to Statement of Financial Accounting Standards Nos. 166 or 167 by the Financial Accounting Standards Board or any other change in accounting standards or the issuance of any other pronouncement, release or interpretation, causes or requires the consolidation of all or a portion of the assets and liabilities of the Borrowers with the assets and liabilities of the Lender or shall otherwise impose any loss, cost, expense, reduction of return on capital or other loss, such event shall constitute a circumstance on which the Lender may base a claim for reimbursement under this Section 8.3. (c) In determining any amount provided for in this Section 8.3, the Lender may use any reasonable averaging and attribution methods. The Lender making a claim under this Section 8.3 shall submit to the Borrowers a certificate describing such additional or increased cost or reduction in reasonable detail, which certificate shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advancesconclusive absent manifest error. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent Lender shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a ~~Bank (an “Affected Bank”) either demands payment from any Borrower~~ Eurodollar Disruption Event has occurred, all Loans in respect of which Interest accrues at ~~any time pursuant to subsection (a) or (b)~~ a rate based upon the LIBO Rate shall immediately be converted into Loans in respect of ~~this Section 2.10 or fails to consent to any extension of~~ which Interest accrues at the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b)Alternative Rate. (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 1 contract

Samples: Tax Lien Loan and Security Agreement (Encore Capital Group Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of ~~Eurocurrency~~ Eurodollar Rate ~~Advances~~Loans, to the extent already included in the ~~Eurocurrency~~ Eurodollar Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining ~~Eurocurrency~~ Eurodollar Rate ~~Advances or TIBO Rate Advances~~Loans, then the ~~applicable~~ Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the ~~Borrowers~~ Borrower and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s ~~Advances~~ Loans or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the ~~applicable~~ Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the ~~applicable~~ Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make ~~Local Currency Advances, TIBO~~ Eurodollar Rate ~~Advances or Eurocurrency Rate Advances~~ Loans or to fund or maintain ~~Local Currency Advances, TIBO~~ Eurodollar Rate ~~Advances or Eurocurrency Rate Advances~~ Loans hereunder, (i) all ~~Local Currency Advances, TIBO~~ Eurodollar Rate ~~Advances and Eurocurrency Rate Advances~~ Loans of such Bank ~~to any Borrower~~ then outstanding shall ~~be redenominated into Dollars and~~ begin bearing interest at the Base Rate ~~(or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate)~~ for the Interest Period selected by ~~such~~ the Borrower in accordance with the procedures of Section 2.02(a~~) or Section 2.03(a~~), notwithstanding any prior election by ~~such~~ the Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such ~~Advances~~ Loans at the applicable ~~Eurocurrency Rate or TIBO~~ Eurodollar Rate to a later day during such Interest Period, on such later day (in which case ~~such~~ the Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances, TIBO~~ Eurodollar Rate ~~Advances or Eurocurrency Rate Advances, as applicable,~~ Loans shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been ~~given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances~~given, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit~~ Pro Rata Share of any Borrowing comprised of ~~Eurocurrency~~ Eurodollar Rate ~~Advances~~ Loans as a Base Rate ~~Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances~~Loan. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one (1) Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested ~~Revolving Credit~~ Borrowing~~, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing)~~, notify the Agent that the ~~Eurocurrency~~ Eurodollar Rate for ~~Eurocurrency~~ Eurodollar Rate ~~Advances~~ Loans comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective ~~Eurocurrency~~ Eurodollar Rate ~~Advances~~ Loans for such ~~Revolving Credit Borrowing, Local Currency Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such BorrowingBorrower, and the right of ~~any~~ the Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the ~~Eurocurrency~~ Eurodollar Rate for ~~any subsequent Borrowing,~~ such Borrowing shall be suspended until the Agent shall notify the ~~Borrowers~~ Borrower and the Banks that the circumstances causing such suspension no longer exist, and each ~~Advance~~ Loan comprising such Borrowing shall be a Base Rate ~~Advance~~Loan. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from ~~any~~ the Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the ~~Borrowers~~ Borrower may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the ~~applicable~~ Borrower ~~or Borrowers~~ to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 1 contract

Samples: Bridge Loan Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of ~~Eurocurrency~~ EURIBOR Rate Advances, to the extent already included in the ~~Eurocurrency~~ EURIBOR Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining ~~Eurocurrency~~ Term SOFR Advances, EXXXXXX Rate Advances or ~~TIBO Rate~~ RFR Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Euro Lending Office or RFR Lending Office to perform its obligations hereunder to make Local Currency Advances, ~~TIBO~~ RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances or to fund or maintain Local Currency Advances, ~~TIBO Rate~~ RFR Advances, Term SOFR Advances or ~~Eurocurrency~~ EURIBOR Rate Advances hereunder, (i) all Local Currency Advances, ~~TIBO~~ RFR Advances, EXXXXXX Rate Advances and ~~Eurocurrency Rate~~ Term SOFR Advances of such Bank to any Borrower then outstanding shall be ~~redenominated~~ Redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of ~~TIBO Rate Advances~~RFR Advances denominated in Japanese Yen, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable ~~Eurocurrency~~ EURIBOR Rate or ~~TIBO Rate~~ Term SOFR to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, ~~TIBO~~ RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances, RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of ~~Eurocurrency~~ EURIBOR Rate Advances, Term SOFR Advances or RFR Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that Term SOFR for Term SOFR Advances, the ~~Eurocurrency~~ EURIBOR Rate for ~~Eurocurrency~~ EURIBOR Rate Advances, or Daily Simple RFR for the RFR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective ~~Eurocurrency~~ Term SOFR Advances, EURIBOR Rate Advances or RFR Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding ~~Eurocurrency~~ Term SOFR Advance or EURIBOR Rate ~~Advance~~ Advance, as applicable, will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, (2) each such outstanding RFR Advance will automatically, on the day such notice is delivered, Convert into, and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (23) the right of the requesting Borrower to select Term SOFR, the ~~Eurocurrency~~ EURIBOR Rate or RFR for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, ~~Eurocurrency~~ Term SOFR Advances, EURIBOR Rate Advances or RFR Advances, or to select Term SOFR, the ~~Eurocurrency~~ EURIBOR Rate or RFR for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that ~~the TIBO Rate~~ TONAR for ~~TIBO Rate~~ TONAR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective ~~TIBO Rate~~ TONAR Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding ~~TIBO Rate~~ TONAR Advance will automatically, on the ~~last~~ day ~~of the then existing Interest Period therefor~~such notice is delivered, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select ~~the TIBO Rate~~ TONAR for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, ~~TIBO Rate~~ TONAR Advances, or select ~~the TIBO Rate~~ TONAR for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the ~~Xxxx~~Dxxx-~~Xxxxx~~ Fxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 1 contract

Samples: Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) ~~If, due to~~ If (1) either (i) ~~the introduction of or~~ any ~~change~~ Change in Law (~~other than~~ including, without limitation, any change by way of imposition or increase of reserve requirements~~, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage~~) ~~in or in the interpretation of any law or regulation~~ or (ii) the compliance by a Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law~~), there shall be any increase in~~ ) issued after the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision date of this ~~Agreement~~ Agreement, shall (a) impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve ~~requirements~~ requirement imposed by the Board of Governors of the Federal Reserve System, but excluding any reserve requirement, if any, included in ~~determining~~ the ~~Eurocurrency Rate~~determination of Interest)~~. A certificate describing~~ , special deposit or similar requirement against assets of, deposits with or for the amount of, or credit extended by, any Lender under this Agreement or any other Transaction Document or (b) impose any other condition affecting the ownership or security interest in ~~reasonable detail~~ the Collateral conveyed to the Lenders hereunder or any Lender’s rights hereunder or under any other Transaction Document, the result of which is to increase the cost to any Lender or to reduce the amount of any sum received or receivable by a Lender under this Agreement or under any other Transaction Document, and (2) such costs are generally being imposed on borrowers under Lender’s similar credit facilities, then on the Payment Date following demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand), the Borrower shall pay directly to such Lender such additional amount or amounts as will compensate such Lender for such additional or increased ~~cost~~cost incurred or such reduction suffered. For the avoidance of doubt, ~~submitted~~ any costs, expenses or taxes due and payable pursuant to Section 13.9 shall not be deemed costs pursuant to Section 2.12(a) or (b) for purposes of the foregoing sentence. Notwithstanding anything to the ~~Borrowers and the Agent by such Bank~~contrary contained herein, this Section 2.12(a) shall ~~create a rebuttable presumption of such increased cost. If~~ not apply to any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillartax-related matter. (b) If (1) either (i) any ~~Bank determines that~~ Change in Law or (ii) the compliance by any Lender with any ~~law or regulation or any guideline~~ law, guideline, rule, regulation, directive or request from any central bank or other ~~Governmental Authority~~ governmental authority or agency (whether or not having the force of law) ~~affects~~ arising from a change after the date of this Agreement, including, without limitation, compliance by a Lender with any request or directive regarding capital adequacy, has or would ~~affect~~ have the ~~amount~~ effect of reducing the rate of return on the capital of any Lender as a consequence of its obligations hereunder or ~~liquidity required~~ arising in connection herewith to a level below that which any such Lender could have achieved but for such introduction, change or ~~expected to be maintained by such Bank or by any Person controlling such Bank and that~~ compliance (taking into consideration the ~~amount~~ policies of such Lender with respect to capital ~~or liquidity requirement is increased~~ adequacy) by ~~or based upon the existence of such Bank’s Advances or commitment to lend hereunder~~a material amount, ~~then, upon written demand by such Bank~~ and (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x2) such ~~Bank shall have certified in writing to the applicable Borrower that it~~ Lender is generally ~~seeking, or intends to generally seek, comparable compensation from similarly situated~~ being compensated by borrowers under similar credit facilities for such reduced rates of return, then from time to time, on the Payment Date following demand by such Lender (to which demand shall be accompanied by a statement setting forth the ~~extent~~ basis for such ~~Bank has~~ demand), the ~~right under such similar credit facilities to do so) with respect~~ Borrower shall pay directly to such ~~change regarding such increased cost and (y)~~ Lender such additional amount or amounts ~~shall not be duplicative~~ as will compensate such Lender for such reduction. For the avoidance of ~~any amounts to~~ doubt, if the ~~extent otherwise paid by~~ issuance after the ~~applicable Borrower under any other provision~~ date of this Agreement of any amendment or supplement to Interpretation No. 46 or to Statement of Financial Accounting Standards No. 140 (~~including~~as revised through March 2008) by the Financial Accounting Standards Board or any other change in accounting standards or the issuance of any other pronouncement, ~~without limitation~~release or interpretation, causes or requires the consolidation of all or a portion of the assets and liabilities of the Originator or the Borrower with the assets and liabilities of any ~~reserve requirements included in determining the Eurocurrency Rate)~~Lender, or any Lender or shall otherwise impose any loss, cost, expense, reduction of return on capital or other loss, such event shall constitute a circumstance on which such Lender may base a claim for reimbursement under this Section 2.12. ~~A certificate describing in reasonable detail such amounts submitted~~ Notwithstanding anything to the ~~applicable Borrower by such Bank~~ contrary contained herein, this Section 2.12(b) shall ~~create a rebuttable presumption of such amounts. If~~ not apply to any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillartax-related matter. (c) If ~~any Bank shall notify the Agent that the introduction of or any change in or in the interpretation~~ as a result of any ~~law~~ event or ~~regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office~~ circumstance similar to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or those described in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection clause (a) or (b) of this Section ~~2.10~~ 2.12, any Lender is required to compensate a bank or ~~fails~~ other financial institution providing liquidity support, credit enhancement or other similar support to ~~consent to any extension~~ such Lender in connection with this Agreement or the funding or maintenance of ~~the Current Termination Date requested by the Borrowers under Section 2.16~~Advances hereunder, then ~~from~~ on the Payment Date at least ten (10) days after demand by such ~~time and for so long thereafter as such Bank remains an Affected Bank~~Lender, the ~~Borrowers~~ Borrower shall pay to such Lender such additional amount or amounts as may ~~either~~ be necessary to reimburse such Lender for any amounts payable or paid by it. (1d) ~~terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable~~ In determining any amount provided for in this Section 2.12, a Lender may use any reasonable averaging and attribution methods. Any Lender making a claim under this Section 2.12 shall submit to the ~~Agent (the consent of the Agent not~~ Servicer a written description in reasonable detail as to ~~be unreasonably withheld~~ such additional or ~~delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank~~ increased cost or reduction and the ~~replacement bank(s~~calculation thereof, which written description shall be conclusive absent manifest error. (e) ~~execute and deliver~~ Failure or delay on the part of any Lender to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank demand compensation pursuant to this Section ~~2.10 and~~2.12 shall not constitute a waiver of such Lender’s right to demand or receive such compensation. The Borrower shall not be required to compensate any Person for any loss, ~~if applicable~~cost or expense under this Section unless a claim therefor has been made within 180 days of knowledge (or, ~~Section 8.04(b)~~the date on which such Person reasonably should have known) thereof by such Person. (gf) ~~Notwithstanding anything herein~~ Each Lender agrees that it will take such commercially reasonable actions as the Borrower may reasonably request that will avoid the need to pay, or reduce the ~~contrary~~amount of, ~~(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines~~ any increased amounts referred to in these Sections 2.12 or ~~directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating~~ 2.13; provided that no Lender shall be obligated to ~~capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or~~ take any ~~successor or similar authority) or the United States or foreign regulatory authorities~~actions that would, in ~~each case pursuant~~ the reasonable opinion of such Lender, be materially disadvantageous to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issuedsuch Lender.

Appears in 1 contract

Samples: Revolving Credit Agreement (NewStar Financial, Inc.)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or ~~CFKK~~CFC, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.that

Appears in 1 contract

Samples: Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or ~~TIBO Rate~~ RFR Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office or RFR Lending Office to perform its obligations hereunder to make Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, ~~TIBO Rate~~ RFR Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be ~~redenominated~~ Redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of ~~TIBO Rate Advances~~RFR Advances denominated in Japanese Yen, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a~~) or Section 2.03(a~~), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency ~~Rate or TIBO~~ Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, ~~TIBO Rate~~ RFR Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances, RFR Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances or RFR Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed ~~Conversion,~~ Conversion Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit ~~Borrowing, Term Loan~~ Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances or Daily Simple RFR for the RFR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances or RFR Advances for such Revolving Credit ~~Borrowing,~~ Borrowing or Local Currency ~~Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, (2) each such outstanding RFR Advance will automatically, on the day such notice is delivered, Convert into, and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (23) the right of the requesting Borrower to select the Eurocurrency Rate or RFR for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances or RFR Advances, or to select the Eurocurrency Rate or RFR for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that ~~the TIBO Rate~~ TONAR for ~~TIBO Rate~~ TONAR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective ~~TIBO Rate~~ TONAR Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding ~~TIBO Rate~~ TONAR Advance will automatically, on the ~~last~~ day ~~of the then existing Interest Period therefor~~such notice is delivered, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select ~~the TIBO Rate~~ TONAR for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, ~~TIBO Rate~~ TONAR Advances, or select ~~the TIBO Rate~~ TONAR for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, 45 the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 1 contract

Samples: Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) ~~If, due to~~ If (1) either (i) ~~the introduction of or~~ any ~~change~~ Change in Law (~~other than~~ including, without limitation, any change by way of imposition or increase of reserve requirements~~, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage~~) ~~in or in the interpretation of any law or regulation~~ or (ii) the compliance by a Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law~~), there shall be any increase in~~ ) issued after the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision date of this ~~Agreement~~ Agreement, shall (a) impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve ~~requirements~~ requirement imposed by the Board of Governors of the Federal Reserve System, but excluding any reserve requirement, if any, included in ~~determining~~ the ~~Eurocurrency Rate~~determination of Interest)~~. A certificate describing~~ , special deposit or similar requirement against assets of, deposits with or for the amount of, or credit extended by, any Lender under this Agreement or any other Transaction Document, (b) impose any other condition affecting the ownership or security interest in ~~reasonable detail~~ the Collateral conveyed to the Lenders hereunder or any Lender’s rights hereunder or under any other Transaction Document or (c) subject any Lender or the Administrative Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, the result of which is to increase the cost to any Lender or to reduce the amount of any sum received or receivable by a Lender under this Agreement or under any other Transaction Document, and (2) such ~~increased cost~~costs are generally being imposed on borrowers under Lender’s similar credit facilities, ~~submitted to~~ then on the ~~Borrowers and the Agent~~ Payment Date following demand by such ~~Bank,~~ Lender (which demand shall ~~create~~ be accompanied by a ~~rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation~~ statement setting forth the basis for such demand), the Borrower shall pay directly to such Lender such additional amount or amounts as will compensate such Lender for such additional or increased cost incurred or such reduction suffered. For the avoidance of doubt, any costs, expenses or taxes due and payable pursuant to Section 13.9 shall not be ~~paid by such Borrower~~ deemed costs pursuant to Section 2.12(a) or (~~or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation~~ b) for ~~such increased cost shall be paid by Caterpillar~~purposes of the foregoing sentence. (b) If (1) either (i) any ~~Bank determines that~~ Change in Law or (ii) the compliance by any Lender with any ~~law or regulation or any guideline~~ law, guideline, rule, regulation, directive or request from any central bank or other ~~Governmental Authority~~ governmental authority or agency (whether or not having the force of law) ~~affects~~ arising from a change after the date of this Agreement, including, without limitation, compliance by a Lender with any request or directive regarding capital adequacy, has or would ~~affect~~ have the ~~amount~~ effect of reducing the rate of return on the capital of any Lender as a consequence of its obligations hereunder or ~~liquidity required~~ arising in connection herewith to a level below that which any such Lender could have achieved but for such introduction, change or ~~expected to be maintained by such Bank or by any Person controlling such Bank and that~~ compliance (taking into consideration the ~~amount~~ policies of such Lender with respect to capital adequacy) by a material amount (including any such reduction as a result of any Lender or ~~liquidity requirement is increased~~ the Administrative Agent being subject to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (C) Other Connection Taxes that are imposed on or measured by net income (however denominated) or ~~based upon the existence~~ that are franchise Taxes or branch profits Taxes) on its loans, loan principal, letters of ~~such Bank’s Advances~~ credit, commitments, or ~~commitment to lend hereunder~~other obligations, ~~then~~or its deposits, ~~upon written demand by such Bank (with a copy of such demand to the Agent~~reserves, other liabilities or capital attributable thereto), ~~the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank~~ and (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x2) such ~~Bank shall have certified in writing to the applicable Borrower that it~~ Lender is generally ~~seeking, or intends to generally seek, comparable compensation from similarly situated~~ being compensated by borrowers under similar credit facilities for such reduced rates of return, then from time to time, on the Payment Date following demand by such Lender (to which demand shall be accompanied by a statement setting forth the ~~extent~~ basis for such ~~Bank has~~ demand), the ~~right under such similar credit facilities to do so) with respect~~ Borrower shall pay directly to such ~~change regarding such increased cost and (y)~~ Lender such additional amount or amounts ~~shall not be duplicative~~ as will compensate such Lender for such reduction. For the avoidance of ~~any amounts to~~ doubt, if the ~~extent otherwise paid by~~ issuance after the ~~applicable Borrower under any other provision~~ date of this Agreement of any amendment or supplement to Interpretation No. 46 or to Statement of Financial Accounting Standards No. 140 (~~including~~as revised through March 2008) by the Financial Accounting Standards Board or any other change in accounting standards or the issuance of any other pronouncement, ~~without limitation~~release or interpretation, causes or requires the consolidation of all or a portion of the assets and liabilities of the Originator or the Borrower with the assets and liabilities of any ~~reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank~~ Lender, or any Lender or shall ~~create a rebuttable presumption~~ otherwise impose any loss, cost, expense, reduction of ~~such amounts. If any such increase in~~ return on capital or ~~liquidity requirement is attributable to specific Advances made to~~ other loss, such event shall constitute a ~~particular Borrower or to the Allocated Commitments to~~ circumstance on which such Lender may base a ~~particular Borrower or Borrowers, compensation~~ claim for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillarreimbursement under this Section 2.12. (c) If ~~any Bank shall notify the Agent that the introduction of or any change in or in the interpretation~~ as a result of any ~~law~~ event or ~~regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its Eurocurrency Lending Office~~ circumstance similar to perform its obligations hereunder to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances hereunder, (i) all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate (or those described in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances. (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the Eurocurrency Rate for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection clause (a) or (b) of this Section ~~2.10~~ 2.12, any Lender is required to compensate a bank or ~~fails~~ other financial institution providing liquidity support, credit enhancement or other similar support to ~~consent to any extension~~ such Lender in connection with this Agreement or the funding or maintenance of ~~the Current Termination Date requested by the Borrowers under Section 2.16~~Advances hereunder, then ~~from~~ on the Payment Date at least ten (10) days after demand by such ~~time and for so long thereafter as such Bank remains an Affected Bank~~Lender, the ~~Borrowers~~ Borrower shall pay to such Lender such additional amount or amounts as may ~~either~~ be necessary to reimburse such Lender for any amounts payable or paid by it. (1d) ~~terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable~~ In determining any amount provided for in this Section 2.12, a Lender may use any reasonable averaging and attribution methods. Any Lender making a claim under this Section 2.12 shall submit to the ~~Agent (the consent of the Agent not~~ Servicer a written description in reasonable detail as to ~~be unreasonably withheld~~ such additional or ~~delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank~~ increased cost or reduction and the ~~replacement bank(s~~calculation thereof, which written description shall be conclusive absent manifest error. (e) ~~execute and deliver~~ Failure or delay on the part of any Lender to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank demand compensation pursuant to this Section ~~2.10 and~~2.12 shall not constitute a waiver of such Lender’s right to demand or receive such compensation. The Borrower shall not be required to compensate any Person for any loss, ~~if applicable~~cost or expense under this Section unless a claim therefor has been made within 180 days of knowledge (or, ~~Section 8.04(b)~~the date on which such Person reasonably should have known) thereof by such Person. (gf) ~~Notwithstanding anything herein~~ Each Lender agrees that it will take such commercially reasonable actions as the Borrower may reasonably request that will avoid the need to pay, or reduce the ~~contrary~~amount of, ~~(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines~~ any increased amounts referred to in these Sections 2.12 or ~~directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating~~ 2.13; provided that no Lender shall be obligated to ~~capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or~~ take any ~~successor or similar authority) or the United States or foreign regulatory authorities~~actions that would, in ~~each case pursuant~~ the reasonable opinion of such Lender, be materially disadvantageous to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issuedsuch Lender.

Appears in 1 contract

Samples: Revolving Credit Agreement (NewStar Financial, Inc.)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of ~~Eurocurrency~~ EURIBOR Rate Advances, to the extent already included in the ~~Eurocurrency~~ EURIBOR Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining ~~Eurocurrency~~ Term SOFR Advances, XXXXXXX Rate Advances or ~~TIBO Rate~~ RFR Advances, then the applicable Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar.. Caterpillar: Confidential Green (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital or liquidity requirement is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the applicable Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity requirement to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the ~~Eurocurrency~~ EURIBOR Rate). A certificate describing in reasonable detail such amounts submitted to the applicable Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillar. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Euro Lending Office or RFR Lending Office to perform its obligations hereunder to make Local Currency Advances, ~~TIBO~~ RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances or to fund or maintain Local Currency Advances, ~~TIBO Rate~~ RFR Advances, Term SOFR Advances or ~~Eurocurrency~~ EURIBOR Rate Advances hereunder, (i) all Local Currency Advances, ~~TIBO~~ RFR Advances, XXXXXXX Rate Advances and ~~Eurocurrency Rate~~ Term SOFR Advances of such Bank to any Borrower then outstanding shall be ~~redenominated~~ Redenominated into Dollars and begin bearing interest at the Base Rate (or in the case of ~~TIBO Rate Advances~~RFR Advances denominated in Japanese Yen, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate) for the Interest Period selected by such Borrower in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable ~~Eurocurrency~~ EURIBOR Rate or ~~TIBO Rate~~ Term SOFR to a later day during such Interest Period, on such later day (in which case such Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make Local Currency Advances, ~~TIBO~~ RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances, as applicable, shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been given (i) in the case of Local Currency Advances, RFR Advances, EURIBOR Rate Advances or ~~Eurocurrency Rate~~ Term SOFR Advances, such Bank shall fund its Local Currency Advance made in connection with each Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of ~~Eurocurrency~~ EURIBOR Rate Advances, Term SOFR Advances or RFR Advances as a Base Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances.. Caterpillar: Confidential Green (d) If the Majority Banks (or the Majority Local Currency Banks, as applicable) shall, at least one (1) Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit Borrowing, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing), notify the Agent that Term SOFR for Term SOFR Advances, the ~~Eurocurrency~~ EURIBOR Rate for ~~Eurocurrency~~ EURIBOR Rate Advances, or Daily Simple RFR for the RFR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks (or such Majority Local Currency Banks, as applicable) of making or funding their respective ~~Eurocurrency~~ Term SOFR Advances, EURIBOR Rate Advances or RFR Advances for such Revolving Credit Borrowing, Local Currency Borrowing or Term Loan Borrowing, the Agent shall so notify the Borrowers, and (1) each such outstanding ~~Eurocurrency~~ Term SOFR Advance or EURIBOR Rate ~~Advance~~ Advance, as applicable, will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, (2) each such outstanding RFR Advance will automatically, on the day such notice is delivered, Convert into, and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (23) the right of the requesting Borrower to select Term SOFR, the ~~Eurocurrency~~ EURIBOR Rate or RFR for such Borrowing, and the right of any Borrower to Convert Advances into, or continue Advances as, ~~Eurocurrency~~ Term SOFR Advances, EURIBOR Rate Advances or RFR Advances, or to select Term SOFR, the ~~Eurocurrency~~ EURIBOR Rate or RFR for any subsequent Borrowing, shall be suspended until the Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that ~~the TIBO Rate~~ TONAR for ~~TIBO Rate~~ TONAR Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective ~~TIBO Rate~~ TONAR Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding ~~TIBO Rate~~ TONAR Advance will automatically, on the ~~last~~ day ~~of the then existing Interest Period therefor~~such notice is delivered, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select ~~the TIBO Rate~~ TONAR for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, ~~TIBO Rate~~ TONAR Advances, or select ~~the TIBO Rate~~ TONAR for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance.. Caterpillar: Confidential Green (f) In the event that a Bank (an “Affected Bank”) either demands payment from any Borrower at any time pursuant to subsection (a) or (b) of this Section 2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the applicable Borrower or Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 1 contract

Samples: Credit Agreement (Caterpillar Inc)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurocurrency Rate ~~Advances or TIBO Rate~~ Advances, then the ~~applicable Borrower~~ Borrowers shall from time to time, upon written demand by such Bank (with a copy of such demand to the Administrative Agent), be jointly and severally obligated to pay to the Administrative Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the Borrowers and the Administrative Agent by such Bank, shall create a rebuttable presumption of such increased cost. ~~If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation~~ Compensation for such increased cost shall be paid jointly and severally by ~~such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar~~the Borrowers. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s �s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Administrative Agent), the ~~applicable Borrower~~ Borrowers shall be jointly and severally obligated to immediately pay to the Administrative Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s �s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the ~~applicable Borrower~~ Borrowers by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowers, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation Compensation for such increased capital ~~or liquidity requirement~~ shall be paid jointly and severally by ~~Caterpillar~~the Borrowers. (c) If any Bank shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances or to fund or maintain ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances hereunder, (i) all ~~Local Currency Advances, TIBO Rate Advances and~~ Eurocurrency Rate Advances of such Bank to any Borrower then outstanding shall be redenominated into Dollars and begin bearing interest at the Base Rate ~~(or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate)~~ for the Interest Period selected by ~~such Borrower~~ Borrowers in accordance with the procedures of Section 2.02(a) or Section 2.03(a), notwithstanding any prior election by such Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable Eurocurrency Rate ~~or TIBO Rate~~ to a later day during such Interest Period, on such later day (in which case ~~such Borrower~~ the Borrowers shall ~~in addition~~ be jointly and severally obligated to reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances, TIBO Rate Advances or~~ Eurocurrency Rate Advances, as applicable, shall be suspended until such Bank shall notify the Administrative Agent that the circumstances causing such suspension no longer exist, and until such notification has been ~~given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances~~given, such Bank shall fund its ~~Local Currency Advance made in connection with each Local Currency Borrowing and~~ Revolving Credit Advance made in connection with each Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base Rate Advance~~, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances~~. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one ~~(1)~~ Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any requested Revolving Credit ~~Borrowing,~~ Borrowing or Term Loan ~~Borrowing or Local Currency Borrowing (or on the date of such Local Currency~~ Borrowing~~, in the case of a Same Day Local Currency Borrowing)~~, notify the Administrative Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective Eurocurrency Rate Advances for such Revolving Credit ~~Borrowing, Local Currency~~ Borrowing or Term Loan Borrowing, the Administrative Agent shall so notify the Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the ~~requesting Borrower~~ Borrowers to select the Eurocurrency Rate for such Borrowing, and the right of ~~any Borrower~~ the Borrowers to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing, shall be suspended until the Administrative Agent shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “�Affected Bank”�) ~~either~~ demands payment from ~~any Borrower~~ the Borrowers at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the Borrowers may either (1) terminate such Affected Bank’s �s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Administrative Agent (the consent of the Administrative Agent not to be unreasonably withheld or delayed); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of clause (2), the Affected Bank and the replacement bank(s) execute and deliver to the Administrative Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Administrative Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s �s obligations hereunder, and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the ~~applicable Borrower or~~ Borrowers to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 1 contract

Samples: Credit Agreement (Caterpillar Financial Services Corp)

Increased Costs; Capital Adequacy; Illegality. (a) If, due to either (i) the introduction of or any change ~~(other than any change by way of imposition or increase of reserve requirements, in the case of Eurocurrency Rate Advances, to the extent already included in the Eurocurrency Rate Reserve Percentage)~~ in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining ~~Eurocurrency Rate Advances or TIBO Rate~~ Eurodollar Advances, then the ~~applicable~~ Borrower shall from time to time, upon written demand by such Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail the amount of such increased cost, submitted to the ~~Borrowers~~ Borrower and the Agent by such Bank, shall create a rebuttable presumption of such increased cost. If any such increase in cost is attributable to specific Advances made to a particular Borrower, compensation for such increased cost shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased cost shall be paid by Caterpillar. (b) If any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other ~~Governmental Authority~~ governmental authority (whether or not having the force of law) affects or would affect the amount of capital ~~or liquidity~~ required or expected to be maintained by such Bank or by any Person controlling such Bank and that the amount of such capital ~~or liquidity requirement~~ is increased by or based upon the existence of such Bank’s Advances or commitment to lend hereunder, then, upon written demand by such Bank (with a copy of such demand to the Agent), the ~~applicable~~ Borrower shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank (or, if applicable, such Person controlling such Bank) in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital ~~or liquidity requirement~~ to be allocable to the existence of such Bank’s commitment to lend hereunder; provided, that (x) such Bank shall have certified in writing to the applicable Borrower that it is generally seeking, or intends to generally seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Bank has the right under such similar credit facilities to do so) with respect to such change regarding such increased cost and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the applicable Borrower under any other provision of this Agreement (including, without limitation, any reserve requirements included in determining the Eurocurrency Rate). A certificate describing in reasonable detail such amounts submitted to the ~~applicable~~ Borrower by such Bank shall create a rebuttable presumption of such amounts. If any such increase in capital or liquidity requirement is attributable to specific Advances made to a particular Borrower or to the Allocated Commitments to a particular Borrower or Borrowersbe conclusive and binding for all purposes, compensation for such increase in capital or liquidity requirement shall be paid by such Borrower (or if such Borrower is CIF or CFKK, by CFSC). In all other cases, compensation for such increased capital or liquidity requirement shall be paid by Caterpillarabsent manifest error. (c) If any Bank shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other ~~Governmental Authority~~ governmental authority asserts that it is unlawful, for such Bank or its ~~Eurocurrency~~ Eurodollar Lending Office to perform its obligations hereunder to make ~~Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate~~ Eurodollar Advances or to fund or maintain ~~Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate~~ Eurodollar Advances hereunder, (i) ~~all Local Currency Advances, TIBO Rate Advances and Eurocurrency Rate~~ Eurodollar Advances of such Bank to ~~any~~ the Borrower then outstanding shall ~~be redenominated into Dollars and~~ begin bearing interest at the Base Rate ~~(or in the case of TIBO Rate Advances, be maintained in Japanese Yen but begin bearing interest at the Japan Base Rate)~~ for the Interest Period selected by ~~such~~ the Borrower in accordance with the procedures of Section 2.02(a~~) or Section 2.03(a~~), notwithstanding any prior election by ~~such~~ the Borrower to the contrary, either (x) one Business Day after such notice, or (y) if such Bank may lawfully continue to maintain and fund such Advances at the applicable ~~Eurocurrency Rate or TIBO~~ Adjusted LIBOR Rate to a later day during such Interest Period, on such later day (in which case ~~such~~ the Borrower shall in addition reimburse such Bank for any resulting losses as provided in Section 8.04(b)) and (ii) the obligation of such Bank to make ~~Local Currency Advances, TIBO Rate~~ Eurodollar Advances ~~or Eurocurrency Rate Advances, as applicable,~~ shall be suspended until such Bank shall notify the Agent that the circumstances causing such suspension no longer exist, and until such notification has been ~~given (i) in the case of Local Currency Advances or Eurocurrency Rate Advances~~given, such Bank shall fund its ~~Local Currency~~ Advance made in connection with each ~~Local Currency Borrowing and Revolving Credit Advance made in connection with each Revolving Credit~~ Borrowing comprised of ~~Eurocurrency Rate~~ Eurodollar Advances as a Base Rate Advance~~, and (ii) in the case of a Japan Local Currency Advance, the Japan Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan Base Rate Advances~~. (d) If the Majority Banks ~~(or the Majority Local Currency Banks, as applicable)~~ shall, at least one ~~(1)~~ Business Day before the ~~requested~~ date ~~of, or the proposed Conversion, Redenomination or continuation~~ of ~~the Advances comprising all or part of,~~ any requested ~~Revolving Credit~~ Borrowing~~, Term Loan Borrowing or Local Currency Borrowing (or on the date of such Local Currency Borrowing, in the case of a Same Day Local Currency Borrowing)~~, notify the Agent that the ~~Eurocurrency~~ Adjusted LIBOR Rate for ~~Eurocurrency Rate~~ Eurodollar Advances comprising such Borrowing will not adequately reflect the cost to such Majority Banks ~~(or such Majority Local Currency Banks, as applicable)~~ of making or funding their respective ~~Eurocurrency Rate~~ Eurodollar Advances for such ~~Revolving Credit Borrowing, Local Currency Borrowing or Term Loan~~ Borrowing, the Agent shall so notify the ~~Borrowers~~Borrower, and (1) each such outstanding Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into (or if such Advance is then a Base Rate Advance, shall continue as), and with respect to a requested Advance as part of a requested Borrowing, such Advance shall be, a Base Rate Advance, and (2) the right of the requesting Borrower to select the ~~Eurocurrency~~ Adjusted LIBOR Rate for such Borrowing, and the right of ~~any~~ the Borrower ~~to Convert Advances into, or continue Advances as, Eurocurrency Rate Advances, or~~ to select the ~~Eurocurrency~~ Adjusted LIBOR Rate for any subsequent Borrowing, shall be suspended until the Agent shall notify the ~~Borrowers~~ Borrower and the Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Base Rate Advance. (e) If the Majority Japan Local Currency Banks shall, at least one (1) Business Day before the requested date of, or the proposed Conversion or continuation of the Advances comprising all or part of any requested Japan Local Currency Borrowing (or on the date of such Borrowing if it is being requested on a same-day basis), notify the Japan Local Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such Borrowing will not adequately reflect the cost to such Majority Japan Local Currency Banks of making or funding their respective TIBO Rate Advances for such Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify CFKK and (1) each such outstanding TIBO Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert (or if such Advance is then a Japan Base Rate Advance, shall continue as), and with respect to a requested Japan Local Currency Advance as part of a requested Borrowing, such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2) the right of CFKK to select the TIBO Rate for such Borrowing, and the right of CFKK to Convert Advances into, or continue Advances as, TIBO Rate Advances, or select the TIBO Rate for any subsequent Borrowing, shall be suspended until the Japan Local Currency Agent shall notify the Borrowers and the Japan Local Currency Banks that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Japan Base Rate Advance. (f) In the event that a Bank (an “Affected Bank”) ~~either~~ demands payment from ~~any~~ the Borrower at any time pursuant to subsection (a) or (b) of this Section ~~2.10 or fails to consent to any extension of the Current Termination Date requested by the Borrowers under Section 2.16~~2.10, then from such time and for so long thereafter as such Bank remains an Affected Bank, the ~~Borrowers~~ Borrower may either (1) terminate such Affected Bank’s Commitment hereunder or (2) replace such Affected Bank with another bank or banks acceptable to the Agent (the consent of the Agent not to be unreasonably ~~withheld or delayed~~withheld); provided that (i) no Event of Default has occurred and is continuing at such time, (ii) in the case of ~~clause~~ (2), the Affected Bank and the replacement bank(s) execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Affected Bank’s obligations ~~hereunder,~~ hereunder and (iii) the Affected Bank has been paid all amounts due to it hereunder. In no event shall the replacement of an Affected Bank impair or otherwise affect the obligation of the ~~applicable~~ Borrower ~~or Borrowers~~ to make the payments demanded by such Affected Bank pursuant to this Section 2.10 and, if applicable, Section 8.04(b). (g) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives relating to capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in law and be eligible for redress pursuant to clause (a), (b) and (c), as applicable, of this Section 2.10, regardless of the date enacted, adopted or issued.

Appears in 1 contract

Samples: Credit Agreement (Caterpillar Financial Services Corp)

Common use of Increased Costs; Capital Adequacy; Illegality Clause in Contracts